 Chapter 3 Part 3 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 Spinner. Chapter 3 Part 3. I'd question a murese non-respondent yuratoris. To the question of law, the jurors do not answer. The anotis says that this is indeed a maxim in the civil law jurisprudence, but it does not bind an English jury. For by the common law of the land, the jury are judges as well of the matter of law, as of the fact, with this difference only, that the, a Saxon word, or judge on the bench is to give them no assistance in determining the matter of fact. But if they have any doubt among themselves relating to a matter of law, they may then request him to explain it to them, which, when he hath done, and they are thus become well-informed, they, and they only, become competent judges of the matter of law. And this is the province of the judge on the bench, namely, to show, or teach, the law. But not to take upon him the trials of delinquent, either in matter of fact or in matter of law. Here various Saxon laws are quoted. In either of these fundamental laws is there the least word, hint, or idea, that the earl or alderman, that is to say, the prepositus, presiding officer, of the court, which is tend to mount to the judge on the bench, is to take upon him to judge the delinquent in any sense whatever. The sole purpose of his office is to teach the secular or worldly law. Ditto, page 57, in note. The administration of justice was carefully provided for. It was not the caprice of their lord, but the sentence of their peers that they obeyed. Each was the judge of his equals, and each by his equals was judged. Introduction to Gilbert on 10 years, page 12. Holland says, a respectable class of free saccagers having in general full rights of alienating their lands and holding them probably at a small certain rent from the lord of the manor, frequently occur in the doomsday book. They undoubtedly were suitors to the court baron of the lord, to whose sock or right of justice they belonged. They were consequently judges in civil causes, determined before the menorial tribunal. Second mental ages, 481. Stevens adopts as correct the following quotations from Blackstone. The court baron is a court incident to every manor in the kingdom, to beholden by the steward within the said manor. It is a court of common law, and it is the court before the free holders who owe suit and service to the manor, are bound to service jurors in the courts of the manor. The steward being rather the registrar than the judge. The free holders court was composed of the lords tenants who were the paris equals of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formally held every three weeks, and its most important business was to determine, by writ of right, all controversies relating to the right of lands within the manor. Third Stevens commentaries 392-3, third Blackstone 32-33. A hundred court is only a larger court baron being held for all the inhabitants of a particular hundred instead of a manor. The free suitors, jurors, are here also the judges, and the steward is the registrar. Third Stevens 394-3, third Blackstone 33. The county court is a court incident to the jurisdiction of the sheriff. The free holders of the county are the real judges in this court, and the sheriff is the ministerial officer. Third Stevens 395-6, third Blackstone 35-6. Blackstone describes these courts as courts where injuries were redressed in an easy and expeditious manner by the suffrage of neighbors and friends. Third Blackstone 30. When we read of a certain number of freemen chosen by the parties to decide in dispute, all bound by oath to vote in fortoconsequencia, and that their decision, not the will of the judge presiding, ended the suit, we at once perceive that a great improvement has been made in the old form of compurgation, an improvement which impartial observation can have no hesitation to pronounce as identical in its main features with the trial by jury. Denham's Middle Ages, Section 2, B-2, Chapter 1, 57, Lardner's Cabinet Cyclopedia, 60. The bishop and the earl earn his absence, the Euretha, sheriff, and sometimes both the earl of the Euretha presided at the shire moat, county court. The Euretha, sheriff, usually alone presided at the moat, meaning her court, of the hundred. In the cities and towns which were not within any peculiar jurisdiction, there was held at regular stated intervals and burg moat, or burrow cart, for the administration of justice at which the Euretha, or magistrate appointed by the king, presided, expenses origin of the laws and political institutions of modern Europe, Page 444. The right of the plaintiff and defendant and of the prosecutor and criminal to challenge the uditzis, judges, or assessors appointed to try the cause in civil matters and to decide upon the guilt or innocence of the accused in criminal matters is recognized in the treatise called the Laws of Henry I. But I cannot discover from the English Saxon laws or histories that before the conquests the parties had any general right of challenge. Indeed had such a right existed, the injunctions to all persons standing in the situation of judges, jurors, to do right according to their conscience would scarcely have been so frequently and anxiously repeated. The jurors were sometimes called assessors because they assessed or determined the amount of fines and emersements to be imposed. Hale says, The administration of the common justice of the kingdom seems to be wholly dispensed in the county courts, hundred courts and courts barren, except some of the greater crimes reformed by the Laws of King Henry I, and that part thereof which was sometimes taken up by the Eustaureus Ungliii. This doubtless bred great inconvenience, uncertainty, and variety in the Laws, vis, first by the ignorance of the judges, which were the freeholders of the county. Thirdly, a third inconvenience was that all the business of any moment was carried by parties and factions, for the freeholders being generally the judges and conversing one among another, and being as it were the chief judges, not only of the fact but of the Law, every man that had a suit there sped according as he could make parties. First Hale's history of the common Law, page 246. In all these tribunals, county court, hundred court, etc., the judges were the free tenants owing suit to the court, and afterwards called its peers. First Lungard's history of England, page 488. Henry calls the twelve jurors assessors and says, These assessors, who were in reality judges, took a solemn oath that they would faithfully discharge the duties of their office, and not suffer an innocent man to be condemned nor any guilty person to be acquitted. Third Henry's history of Great Britain, page 346. Chirrell says, Alfred countened his kingdom first into true hings and lives as they are still called in Kent and other places, consisting of three or four hundredths, in which the free holders, being judges, such causes were brought as could not be determined in the hundred court. Chirrell's introduction to the history of England, page 80. Of the hundred court, he says, In this court, anciently, one of the principal inhabitants called the aldermen, together with the barons of the hundred, Note, the barons of the hundred were the free holders. Chirrell says, The word borrow, originally meaning only a man, was of very large significance and is not unfrequently applied to common free holders, as in the phrase court baron. Third Middle Ages, page 14 to 15. Blackstone says, The court baron is a court of common law, and it is the court of the barons by which the name free holders were sometimes anciently called, for that it is held before the free holders who owe suit and service to the manor. Third Blackstone, 33. End footnote. It est the free holders was judge, ditto, page 80. Also he says, By a law of Edward the Elder, every sheriff shall convene the people once a month and do equal right to all, putting an end to controversies at times appointed, ditto, page 86. A statute emphatically termed the ground of size, enabled the defendant, if he thought proper, to abide by the testimony of the twelve good and lawful knights, chosen by four others of the vicinage, and whose oaths gave a final decision to the contested claim. Paul Guide's rise in progress to the English Commonwealth, 261. From the moment when the crown became accustomed to the inquest, a restraint was imposed upon every branch of the prerogative. The king could never be informed of his rights, but through the medium of the people. Every extent by which he claimed the profits and advantages resulting from the casualties of tenure, every process by which he repressed the usurpations of the baronage, depended upon the good men and troop who were in panel to pass between the subject and the sovereign, and the thunder of the exchequer at Westminster might be silenced by the honesty, the firmness, or the obsnesy of one sturdy knight or yeoman in the distant shire. Taxation was controlled in the same manner by the voice of those who were most liable to oppression. A jury was in panel to adjudge the proportion due to the sovereign, and this course was not essentially varied, even after the right of granting aides to the crown was fully acknowledged to be vested in the parliament of the realm. The people taxed themselves, and the collection of the grants was checked and controlled, and perhaps in many instances evaded by these virtual representatives of the community. The principle of the jury was, therefore, not confined to mere application as a mode of trying contested facts, whether in civil or criminal cases, and both in its form and in its consequences it had a very material influence upon the general constitution of the realm. The mainspring of the machinery of remedial justice existed in the franchise of the lower and lowest orders of the political hierarchy. Throughout the suffrage of the yeoman, the burgess, and the churl, the sovereign could not exercise the most important and most essential function of royalty. From them he received the power of life and death. He could not wield the sort of justice until the humblest of his subjects placed the weapon in his hand. First Paul Graves' rise in progress of the English constitution, 274-7. Koch says, The court of the county is no court of record, and the suitors are the judges thereof. Fourth Institutes, 266, note. The ancient jury courts kept no records, because those who composed the courts could neither make nor read records. Their decisions were preserved by the memories of the jurors and other persons present. End foot note. Also the court of the hundred is no court of record, and the suitors be thereof judges. Fourth Institutes, 267. Also the court baron is a court incident to every manner and is not of record, and the suitors be thereof judges. Fourth Institutes, 268. Also the court of ancient domain is in the nature of a court baron, wherein the suitors are judges and is no court of record. Fourth Institutes, 269. Miller says, Some authors have thought that the jurymen were originally compregnators called by a defendant to swear that they believed in innocent of the facts with which he was charged. But the compregnators were merely witnesses. Jurymen were, in reality, judges. The former were called to confirm the oath of the party by swearing according to their beliefs that he had told the truth in his oath of prugation. The latter were appointed to try by witnesses and by all other means of proof whether he was innocent or guilty. These were accustomed to ascertain the truth of facts by the defendant's oath of prugation, together with that of his compregnators. Both of them, jurymen and compregnators, were obliged to swear that they would tell the truth. According to the simple idea of our forefathers, guilt or innocence was regarded as a mere matter of fact, and it was thought that no man who knew the real circumstances of a case could be at a loss to determine whether the culprit ought to be condemned or acquitted. First Miller's historical view of English government, Chapter 12, Page 332-4. Also the same form of procedure which took place in the administration of justice among the vassals of a barony was gradually extended to the courts held in the trading towns. Same, Page 335. Also the same regulations concerning the distribution of justice by the intervention of juries were introduced into the baron courts of the king, as into those of the nobility, or such of his subjects as retained their allodial property. Same, Page 337. Also this tribunal, the Aula Regis, or King's Court, afterwards divided into the courts of King's Bench, Common Pleas and Exchequer, was properly and ordinarily baron court of the king, and, being in the same circumstances with the baron courts of the nobility, it was under the same necessity of trying causes by the intervention of a jury. Same, Volume 2, Page 292. Many of the times of Edward I, 1272-1307, Miller says, What is called the petty jury was therefore introduced into these tribunals, the King's Bench, the Common Pleas and the Exchequer, as well as into their auxiliary courts employed to distribute justice in the circuits, and was thus rendered essentially necessary in determining causes of every sort, whether civil, criminal, or fiscal. Volume 2, Page 293-4. Also that this form of trial by jury obtained universally in all the feudal governments, as well as in that of England, there can be no reason to doubt. In France, in Germany, and in other European countries, where we have any accounts of the constitution and procedure of the feudal courts, it appears that lawsuits of every sort concerning the freemen or vassals of a barony were determined by the Paris Curia, peers of the court, and that the judge took little more upon him than to regulate the method of proceeding or to declare the verdict of the jury. Same, Volume 1, Chapter 12, Page 329. Also among the Gothic nations of modern Europe, the custom of deciding lawsuits by a jury seems to have prevailed universally, first in the illogical courts of a county, or the Hundred, and afterwards in the barren courts of every feudal superior. Same, Volume 2, Page 296. Paul Graves says that in Germany, the Eureph, Eurepha, Sheriff, placed himself in the seat of judgment, and gave the charge to the assembled free Ishva, warning them to pronounce judgment according to right and justice, 2 Paul Graves, 147. Also that in Germany, the Ishva were composed of the villainage somewhat obscured in their functions by the learning of the grave civilian who was associated to them, and somewhat limited by the encroachments of modern feudality, but they were still substantially the judges of the court. Same, 148. Paul Graves also says, Scotland in like manner had the laws of burlough, or burlough, which were made and determined by the neighbors, elected by common consent in the burlough courts, wherein knowledge was taken of complaints between neighbor and neighbor, which men, so chosen, were judges and arbitrators, and called burlough men, 1st Paul Graves rise, etc. Page 80, but in order to understand the common law trial by jury as it existed prior to Magna Carta, and as it was guaranteed by that instrument, it is perhaps indispensable to understand more fully the nature of the courts at which juries sat, and the extent of the powers exercised by juries in those courts. I therefore give in a note extended extracts on these points, from Stuart on the Constitution of England and from Blackstone's commentaries. Stuart says, The courts are civil arrangements which were modeled in Germany, preserve the independence of the people, and having followed the Saxons into England, and continuing their importance, they supported the in being liberty we boast of. As a chief didn't let out his retainers to the field, and governed them during war, so in peace he summoned them together, and exerted a civil jurisdiction. He was at once their captain and their judge. They constituted his court, and having inquired with him into the guilt of those of their order whom justice had accused, they assisted him to enforce his decrees. This court, the court baron, was imported into England, but the innovation which conquest introduced into the fashion of the times altered somewhat its appearance. The head or lord of the manor called forth his attendants to his hall. He inquired into the breaches of custom and of justice, which were committed within the precincts of his territory, and with his followers, who sat with him as judges, he determined all matters of debt and of trespass to a certain amount. He possessed a similar jurisdiction with the chieftain in Germany, and his tenants enjoyed an equal authority with the German retainers. But a mode of administration which entrusted so much power to the great could not long be exercised without blame or injustice. The German, guided by the candor of his mind and entering into all his engagements with the greatest ardor, perceived not at first that the chieftain to whom he submitted his disputes might be swayed in the judgments he pronounced by partiality, prejudice, or interest, and that the influence he maintained with his followers was too strong to be restrained by justice. Experience instructed him of his error. He acknowledged the necessity of appealing from his lord, and the court of the hundred was erected. This establishment was formed both in Germany and England by the inhabitants of a certain division who extended their jurisdiction over the territory they occupied. Note with a note. It was the Freeman in Germany and the possessors of land in England who were suitors, jurors, in the hundred court. These ranks of men were the same. The alteration which had happened in relationship property had invested the German Freeman with land or territory. End of note with a note. They found themselves under a penalty to assemble at stated times, and having elected the wisest to preside over them, they judged not only all civil and criminal matters, but of those also which regarded religion and the priesthood. The judicial power thus invested in the people was extensive. They were able to preserve their rights and attended this court in arms. As the communication, however, and intercourse of the individuals of a German community began to be wider and more general, as their dealings enlarged, and as disputes arose among the members of different hundreds, the insufficiency of these courts for the preservation of order was gradually perceived. The Scheier moat, therefore, or county court, was instituted, and it formed the chief source of justice both in Germany and England. The powers accordingly which had been enjoyed by the court of the hundred were considerably impaired. It decided no longer concerning capital offenses. It decided not concerning matters of liberty and the property of estates or of slaves. Its judgments in every case became subject to review, and it lost entirely the decision of causes when it delayed too long to consider them. Every subject of claim or contention was brought in the first instance or by appeal to the county court, and the Earl, or Earl-domain, who presided there, was active to put the laws in execution. He repressed the disorders which fell out within the circuit of his authority, and the least remission in his duty, or the least fraud he committed, was complained of and punished. He was elected from among the great and was above the temptation of a bribe. But to encourage his activity he was presented with the share of the territory he governed, or was entitled to a proportion to the fines and profits of justice. Every man in his district was bound to inform him concerning criminals, and to assist him to bring them to trial. And as in rude and violent times the poor and helpless were ready to be oppressed by the strong, he was instructed particularly to defend them. His court was ambulatory and assembled only twice a year, unless the distribution of justice required that its meetings should be oftener. Every freeholder in the county was obliged to attend it, and should he refuse this service his possessions were seized and he was forced to find surety for his appearance. The neighboring earls held not their courts in the same day, and, what seems very singular, no judge was allowed, after meals, to exercise his office. The druids also, or priests in Germany, as we had formerly occasioned to remark and the clergy in England, exercised a jurisdiction in the hundred and county courts. They instructed the people in religious duties and in matters regarding the priesthood, and the princes, earls, or earldemen relating to them the laws and customs of the community. These judges were mutually a check to each other, but it was expected that they should agree in their judgments and should willingly unite their efforts for the public interest. Note with a note. It would be wholly erroneous, I think, to infer from this statement of Stuart that either the priests, princes, earls, or earldemen exercise any authority over the jury in the trial of causes in the way of dictating the law to them. Henry's account of this matter doubtless gives a much more accurate presentation of the truth. He says that, anciently, the meeting, the county court, was opened with a discourse by the bishop, explaining out of the scriptures and ecclesiastical canons, there are several duties as good Christians and members of the church. After this, the alderman, or one of his assessors, made a discourse on the laws of the land and the duties of good subjects and good citizens. When these preliminaries were over, they proceeded to try and determine first the causes of the church, next the pleas of the crown, and last of all the controversies of private parties, third Henry's history of Great Britain, 348. This view is cooperated by Teryl's introduction to the history of England, page 83-84, and by Spence's origin of the laws and political institutions of modern Europe, page 447, and the note on the same page. Also by a law of canoe to this effect, in every county, let there be twice a year in assembly, whereout the bishop and the earl shall be present, the one to instruct the people in divine, the other in human, the laws. Wilkins, page 136. End of note within note. But the prince or earl performed not, at all times, in person, the obligations of his office. The enjoyment of ease and of pleasure, to which in Germany he had delivered himself over when disengaged from war, and the mean idea he conceived of the drudgery of civil affairs, made him often delegate to an inferior person the distribution of justice in his district. The same sentiments were experienced by the Saxon nobility, and the service which they owed by their ten years, and the high employments they sustained, called them often for the management of their counties. The progress too of commerce, giving an intricacy to cases and swelling the civil code, added to the difficulty of their office, and made them adverse to its duties. Thus, therefore, deputies were frequently appointed to transact their business, and though these were at first under some subordination to the earls, they grew at length to be entirely independent of them. The connection of jurisdiction and territory is ceasing to prevail, and the civil being separated from the ecclesiastical power, they became the sole and proper officers of the direction of justice in the counties. The hundred, however, and county courts were not equal of themselves for the purposes of jurisdiction and order. It was necessary that a court should be erected of supreme authority, where the disputes of the great should be decided, where the disagreeing sentiments of judges should be reconciled, and where protection should be given to the people against their fraud and injustice. The princes accordingly, or chief nobility in the German communities, assembled together to judge of such matters. The Saxon nobles continued this prerogative, and the king, or in his absence, the chief justiciary, watched over their deliberations. But it was not on every trivial occasion that this court interested itself. In smaller concerns, justice was refused during three sessions of the hundred, and claimed, without effect, at four courts of the county, before there could lie and appeal to it. So gradually were these arrangements established, and so naturally did the varying circumstances in the situation of the Germans and English Saxons direct those successive improvements, which the preservation of order and the advantages of society called them to adopt. The admission of the people into the courts of justice preserved, among the former, that equality of ranks for which they were remarkable, and it helped to overturn, among the latter, those envious distinctions which the feudal system tended to introduce, and prevented that venality in judges in those arbitrary proceedings which the growing attachment to interest and the influence of the crown might otherwise have occasioned. Stuart on the Constitution of England, page 222, to 245. In the Anglo-Saxon period, accordingly, twelve only were elected, and these, together with the judge or presiding officer of the district, being sworn to regard justice and the voice of reason or conscience, all causes were submitted to them, ditto, page 260. Before the orders of men were very nicely distinguished, the jurors were elected from the same rank. When, however, a regular subordination of orders was established, and when a knowledge of property had inspired the necessities of envy, and the rich with contempt, every man was tried by his equals. The same spirit of liberty which gave rise to this regulation attended its progress. Nor could monarchs assume a more arbitrary method of proceeding. I will not, said the Earl of Cornwall to his sovereign, render up my castles, nor depart the kingdom, but by the judgment of my peers. Of this institution so wisely calculated for the preservation of liberty, all our historians have pronounced the eulogym. Ditto, page 262-3. Blochstone says, The policy of our ancient constitution, as regulated and established by the great Alfred, was to bring justice home to every man's door, by constituting as many courts of judicature as there are manners in towns of the kingdom, wherein most injuries were redressed in an easy and expeditious manner by the suffrage of neighbors and friends. These little courts, however, communicated with others of a larger jurisdiction, and those with others of a still greater power ascending gradually from the lowest to the supreme courts, which were respectively constituted to correct the errors of the inferior ones, and to determine such causes as, by reason of their weight and difficulty, demanded a more solemn discussion. The course of justice flowing in large streams from the king as the fountain to the superior courts of record, and being then subdivided into smaller channels, till the whole and every part of the kingdom were plentifully watered and refreshed. An institution that seems highly agreeable to the dictates of natural reason, as well as of more enlightened policy. These inferior courts, at least the name and form of them, still continue in our legal constitution, but as the superior courts of record have in practice obtained a concurrent original jurisdiction, and as there is, besides, a power of removing planks or actions thither from all the inferior jurisdictions, upon these accounts, among others, it has happened that these petty tribunals have fallen into decay, and almost into oblivion, whether for the better or the worse may be a matter of some speculation, when we consider, on the one hand, the increase of expense and delay, and on the other, the more able and impartial decisions that follow from this change of jurisdiction. The order I shall observe in discoursing on these several courts constituted for the redress of civil injuries, for with those of a jurisdiction merely criminal, I shall not at present concern myself. Note within note, there was no distinction between the civil and criminal courts as to the rights or powers of juries, and note within note, will be by beginning with the lowest, and those whose jurisdiction, though public and generally dispersed through the kingdom, is yet, with regard to each particular court, confined to very narrow limits, and so ascending gradually to those of the most extensive and transcendent power. Third Blackstone, 30-32. The court baron is a court incident to every manor in the kingdom, to beholden by the steward within the said manor. This court baron is of two natures. The one is a customary court, of which we formerly spoke, appertaining entirely to the copy holders, in which their estates are transferred by surrender and admittance, and other matters transacted relative to their tenures only. The other, of which we now speak, is a court of common law, and it is a court of the barons by which name the free holders were sometimes intently called. For that it is held by the free holders who owe suit and service to the manor, the steward being rather the registrar than the judge. These courts, though in their nature distinct, are frequently confounded together. The court we are now considering vis the free holders court was composed of the Lord's tenets, who were the paris, equals, of each other, and were bound by their futile tenure to assist their lord in the dispensation of domestic justice. This was formally held every three weeks, and its most important business is to determine, by writ of right, all controversies relating to the right of lands within the manor. It may also hold pleas of any personal actions of debt, trespass in the case, or the like, where the debt or damages do not amount to forty shillings, which is the same sum, or three marks, that bounded the jurisdiction of the ancient Gothic courts in their lowest instance, or Fyrding courts, so called because four were instituted within every superior district or hundred. 100 blocks done, 33, 34. A hundred court is only a larger court baron, being held for all the inhabitants of a particular hundred instead of a manor. The free suitors are here also the judges, and the steward the registrar, as in the case of a court baron. It is likewise no court of record resembling the former at all points, except that in a point of territory it is of greater jurisdiction. This is said by Sir Edward Cope to have been derived out of the county court for the ease of the people, that they might have just as done to them at their own doors, without any charge or loss of time. But its institution was probably co-evil with that of hundreds themselves, which were formally observed to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The Centenny, we may remember, were the principal inhabitants of a district composed of different villages, originally in number a hundred, but afterward only called by that name, and who probably gave the same denomination to the district out of which they were chosen. Caesar speaks positively of the judicial power exercised in their hundred courts, and the court's baron. Principes regiorum atque figurum, which we may fairly construe the lords of hundreds and manors, intersuoius di cont, controversas que minut. The chiefs of the country and the villages declare the law among them in abate controversies, and Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the Centenny, the hundreders, or jury, who were taken out of the common free-holders, and had themselves a share in the determination. Eleguntor in conciliis et principais, qui iura per pagos vicos que redunt, Centenny singolis. Ex plebe comitos concilium simul et auctoritos adzunt. The princes are chosen in the assemblies who administer the laws throughout the towns and villages, and with each one are associated a hundred companions taken from the people for the purposes both of council and authority. This hundred court was denominated Haireda in the Gothic Constitution, but this court, as causes are equally liable to removal from hence as from the common court baron, and by the same writs, and may also be reviewed by writ of false judgment, is therefore fallen into equal disuse with regard to the trial of actions. The county court is a court incident to the jurisdiction of the sheriff. It is not a court of record, but may hold pleas of debt or damages under the value of forty shillings, over some of which causes these inferior courts have, by the express words of the statute of Gloucestershire, six Edward I, chapter eight, a jurisdiction totally exclusive of the king's superior courts. The county court may also hold plea of many real actions, and of all personal actions to any amount by virtue of a special writ called a Eusticeuse, which is a writ empowering the sheriff for the sake of dispatch to do the same justice in his county court as might otherwise be had at Westminster. The free holder of the county court are the real judges in this court, and the sheriff is the ministerial officer. In modern times, as proceedings are removable from hence into the king's superior courts, by writ of pone or recordari, in the same manner as from the hundred courts and courts baron, and as the same writ of false judgment may be had by virtue of a writ of error, this has occasioned the same disuse of bringing actions therein. Upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice as a method so well calculated for cheapness, expedition, and ease. By the constitution which they established, all trivial debts and injuries of small consequence were to be recovered or redressed in every man's own county, hundred, or perhaps parish. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. That all these courts were mere courts of conscience in which the juries were sole judges administering justice according to their own ideas of it is not only shown by the extracts already given but is explicitly acknowledged in the following one in which the modern courts of conscience are compared with the ancient hundred and county courts and the preference given to the latter on the ground that the duties of the jurors in the one case and of the commissioners in the other are the same and that the consciences of a jury are a safer and purer tribunal than the consciences of individuals especially appointed and holding permanent offices. But there is one species of courts constituted by act of parliament in the city of London and other trading and populist districts which in their proceedings so vary from the courts of the common law that they deserve a more particular consideration. I mean the court of requests or courts of conscience for the recovery of small debts. The first of these was established in London so early as the reign of Henry VIII by an act of their common counsel which, however, was certainly insufficient for that purpose and illegal till confirmed by Statute III, James I, Chapter XV, which has since been explained and amended by Statute XIV, George II, Chapter X. The constitution is this, two aldermen and four commoners sit twice a week to hear all causes of debt not exceeding the value of 40 shillings, which they examine in a summary way by the oath of the parties or other witnesses and make such order therein as is consonant to equity and good conscience. Diverse trading towns and other districts have obtained acts of parliament for establishing in them courts of conscience upon nearly the same plan as that in the City of London. The anxious desire that has been shown to obtain these several acts proves clearly that the nation in general is truly sensible of the great inconvenience arising from the disuse of the ancient county and hundred courts wherein causes of this small value were always formally decided with very little trouble and expense to the parties. But it is to be feared that the general remedy which of late has been principally applied to this inconvenience, the erecting these new jurisdictions, may itself be attending in time with very ill consequences. As the method of proceeding therein is entirely in derogation of the common law and their large discretionary powers create a petty tyranny in a set of standing commissioners. And as the disuse of the trial by jury may tend to estrange the minds of the people from that valuable prerogative of Englishmen, which has already been more than sufficiently excluded in many instances. How much rather is it to be wished that the proceedings in the county and hundred courts could be again revived without burdening the freeholders with too frequent and tedious attendances and at the same time removing the delays that have been sensibly crept into their proceedings and the power that either party has of transferring at pleasure their suits to the courts at Westminster. And we may, with satisfaction, observe that this experiment has been actually tried and has succeeded in the populace county of Middlesex, which might serve as an example for others. In statute 23, George II, chapter 33, it is enacted, one, that a special county court shall be held at least once a month in every hundred of the county of Middlesex by the county clerk. Two, that twelve freeholders of that hundred qualify to serve on juries and struck by the sheriff shall be summoned to appear at such court by rotation so as none shall be summoned oftener than once a year. Three, that in all causes not exceeding the value of forty shillings the county clerk and twelve suitors, jurors, shall proceed in a summary way examining the parties and witnesses on oath without the formal process anciently used and shall make such order therein as they shall judge agreeable to conscience. Third, Blackstone, 81, 83. What are these but courts of conscience? And yet Blackstone tells us they are a revival of the ancient hundred and county courts. And what does this fact prove but that the ancient common law courts in which juries sat were mere courts of conscience? It is perfectly evident that in all these courts the jurors were the judges and determined all questions of law for themselves because the only alternative to that supposition is that the jurors took their law from sheriffs, bailiffs, and stewards of which there is not the least evidence in history nor the least probability in reason. It is evident also that they judged independently in the laws of the king for the reasons before given, viz that the authority of the king was held in very little esteem, and secondly that the laws of the king not being printed and the people being unable to read them if they had been printed must have been in a great measure unknown to them and could have been received by them only on the authority of the sheriff, bailiff, or steward. If laws were to be received by them on the authority of these officers the latter would have imposed such laws upon the people as they pleased. These courts that have now been described were continued in full power long after Magna Carta, no alteration being made in them by that instrument, nor in the mode of administering justice in them. There is no evidence whatever so far as I am aware that the juries had any less power in the courts held by the king's justices than in those held by sheriffs, bailiffs, and stewards, and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was that in the former the juries had the benefit of the advice and assistance of the justices, which would, of course, be considered valuable in difficult cases on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or law of the land. The conclusion therefore I think inevitably must be that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them. And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge. The rules of legal decision among a rude people are always very simple, not serving much to guide, far less to control the feelings of natural equity. Second Middle Ages, Chapter 8, Part 2, Page 465 It is evident that it was in this way by the free and concurrent judgments of juries by approving and enforcing certain laws and rules of conduct, corresponding to their notions of right and justice, that the laws and customs, which, for the most part, made up the common law and were called at that day the good laws and good customs, and the law of the land, were established. How otherwise could they ever have become established as Blackstone says they were by long and immemorial usage and by their universal reception throughout the kingdom? Blackstone 36-37 When, as the mirror says, justice was so done that every one so judged his neighbor by such judgment as a man could not also receive in the like cases until such times as the customs of the realm were put in writing and certainly published. The fact that, in that dark age, so many of the principles of natural equity as those then embraced in the common law should have been so uniformly recognized and enforced by juries as to have become established by general consent as the law of the land, and the further fact that this law of the land was held so sacred that even the king could not lawfully infringe or alter it but was required to swear to maintain it are beautiful and impressive illustrations of the truth that men's minds, even in the comparative infancy of other knowledge, have clear and coincident ideas of the elementary principles and the paramount obligation of justice. The same facts also prove that the common mind and the general, or perhaps rather the universal conscience as developed in the untrammeled judgments of juries may be safely relied upon for the preservation of individual rights in civil society and that there is no necessity or excuse for that deluge of arbitrary legislation with which the present age is overwhelmed under the pretext that unless laws be made the law will not be known. A pretext, by the way, almost universally used for overturning instead of establishing the principles of justice. Section 3 The oaths of jurors The oaths that have been administered to jurors in England and which are their legal guide to their duty all, so far as I have ascertained them, cooperate the idea that the jurors are to try all cases on their intrinsic merits independently of any laws that they deem unjust or oppressive. It is probable that an oath was never administered to a jury in England, either in a civil or criminal case, to try it according to law. The earliest oath that I have found prescribed by law to be administered to jurors is in the laws of Ethelred about the year 1015, which require that the jurors shall swear with their hands upon a holy thing that they will condemn no man that is innocent nor acquit any that is guilty. 4th Blackstone 302 2nd Turner's History of the Anglo-Saxons 155 Wilkins Laws of the Anglo-Saxons 117 Spillman's Glossary, Word Eureta Blackstone assumes that this was the oath of the grand jury 4th Blackstone 302, but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petite, took place after the Norman conquest. Hume, speaking of the administration of justice in the time of Alfred, says that in every hundred twelve freeholders were chosen who, having sworn together with the hundreder or presiding magistrate of that division to administer impartial justice, proceeded to the examination of that cause which was submitted to their jurisdiction. Hume, Chapter 2 By a law of Henry II in 1164 it was directed that the sheriff of the United States, Eurora, of the legal hominids, be with the native of the city as the second conscience of his manifesto. He will make twelve legal men from the neighborhood to swear that they will make known the truth according to their conscience. Crab's History of the English Law 119 1st Reeves, 87 Wolkins, 321-323 Glanville, who wrote within the half-century previous to Magna Carta, says each of the knights summoned for this purpose as jurors ought to swear that he will neither utter that which is false nor knowingly conceal the truth. Beams Glanville, 65 Reeve calls the trial by jury the trial by twelve men sworn to speak the truth. 1st Reeves' History of the English Law, 87 Henry says that the jurors took a solemn oath that they would faithfully discharge the duties of their office and not suffer an innocent man to be condemned nor any guilty person to be acquitted. 3rd Henry's History of Great Britain, 346 The Mirror of Justices, written within a century after Magna Carta in the chapter on the abuses of the common law, says it is abuse to use the words to their knowledge in their oaths to make the jurors speak upon thoughts since the chief words of their oaths be that they speak the truth. Page 249 Smith, writing in the time of Elizabeth, says that in civil suits the jury be sworn to declare the truth of that issue according to the evidence and their conscience. Smith's Commonwealth of England, edition of 1621, page 73. In criminal trials he says the clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner. Ditto, page 90. Note This quaint and curious book, Smith's Commonwealth of England, describes the minutiae of trials giving in detail the motive of impaneling the jury and then giving the conduct of the lawyers, witnesses, and court. I give the following extracts tending to show that judges impose no law upon the juries either in civil or criminal cases but only require them to determine the causes according to their consciences. In civil clauses he says when it is thought that it is enough pleaded before them and the witnesses have said what they can one of the judges with a brief and pithy recapitulation recited to the twelve in sum the arguments of the sergeants of either side that which the witnesses have declared and the chief points of the evidence showed in writing and one again put at them in mind of the issue and sometime give with it them in writing delivering to them the evidence which is showed in either part if any be evidence here is called writings of contracts authentical after the manner of England that is to say written, sealed, and delivered and bid at them go together page 74. This is the whole account given of the charge to the jury in criminal cases after the witnesses have been heard and the prisoner has said what he pleases in his defense the book proceeds when the judge has heard them say enough he asketh if they can say any more if they say no then he turneth his speech to the inquest good men sayeth he ye of the inquest ye have heard what these men say against the prisoner ye have heard what the prisoner can say for himself have an eye to your oath and to your duty and do that which God shall put in your minds the discharge of your consciences and mark well what is said page 92. This is the whole account given of the charge in a criminal case the following statement goes to confirm the same idea that jurors in England formally understood it to be their right and duty to judge only according to their consciences and not to submit to any dictation from the court either as to law or fact if having pregnant evidence nevertheless the twelve do acquit the mal-factor which they will do sometimes especially if they perceive either one of the justices or of the judges or some other man which in too maliciously the death of the prisoner the prisoner escaped but the twelve are not only rebuked by the judges but also threatened of punishment and many times committed to appear in the star chamber or before the privy council for the matter but this threatening chances often are than the execution thereof and the twelve answer with the most gentle words they did it according to their consciences and prayed the judges to be good unto them they did as they thought right and as they accorded all and so it passeth away for the most part page 100 the account given of the trial of a peer of the realm cooperates the same point if any duke marcus or any other of the degrees of a baron or above lord of the parliament be a peacht of treason or any other capital crime he is judged by his peers and equals that is the omen readeth not go upon him but an inquest of the lords of parliament and they give their voices not one for all but each severally as they do in parliament mean beginning at the youngest lord and for judge one lord who is constable of england for that day the judgment once given he breaketh his staff and abdicated his office in the rest there is no difference from that above written that is in the case of freeman page 98 end footnote hail says then twelve and no less of such as are indifferent and are returned upon the principal panel or the tales are sworn to try the same according to the evidence second hell's history of the common law 141 it appears from lockstone that even at this day neither in civil nor criminal cases are jurors in england sworn to try causes according to law he says that in civil suits the jury are sworn well and truly to try the issue between the parties and a true verdict to give according to the evidence third blockstone 365 the issue to be tried is whether a owes b anything and if so how much or whether a has in his possession anything that belongs to b or whether a has wronged b and ought to make compensation and if so how much no statute passed by a legislature simply as a legislature can alter either of these issues in hardly any conceivable case perhaps and none no unjust law could ever alter them in any they are all mere questions of natural justice which legislatures have no power to alter and with which they have no right to interfere further than to provide for having them settled by the most competent and impartial tribunal that it is practicable to have and then for having all just decisions enforced and any tribunal whether judge or jury that attempts to try these issues has no more moral right to be swerved from the line of justice by the will of a legislature then by the will of any other way of men whatever and this oath does not require or permit a jury to be so swerved in criminal cases Blackstone says the oath of the jury in England is well and truly to try and true deliverance make between our sovereign lord the king and the prisoner whom they have in charge and a true verdict to give according to the evidence 4th Blackstone 355 the issue to be tried in a criminal case is guilty or not guilty the laws passed by a legislature can rarely if ever have anything to do with this issue guilt is an intrinsic quality of actions and can neither be created destroyed nor changed by legislation and no tribunal that attempts to try this issue can have any more to declare a man guilty for an act that is intrinsically innocent at the bidding of a legislature any more than at the bidding of anybody else and this oath does not require or permit a jury to do so the words according to the evidence have doubtless been introduced into the above oaths in modern times they are unquestionably in violation of the common law and of Magna Carta if by them be meant such evidence only as the government sees fit to allow to go to the jury if the government can dictate the evidence and require the jury to decide according to that evidence it necessarily dictates the conclusion to which they must arrive in that case the trial is really a trial by the government and not by the jury the jury cannot try an issue unless they determine what evidence shall be admitted the ancient oaths it will be observed say nothing about according to the evidence they obviously take it for granted that the jury try the whole case and of course that they decide what evidence shall be admitted it would be intrinsically an immoral and criminal act for a jury to declare a man guilty or to declare that one man owed money to another unless all the evidence were admitted which they thought ought to be admitted for ascertaining the truth note the present form of the jurors oath is that they shall give a true verdict according to the evidence at what time this form was introduced is uncertain but for several centuries after the conquest the jurors both in civil and criminal cases are sworn merely to speak the truth glanville 2 chapter 17 bracton 3 chapter 22 britain page 287 291 britain page 135 hence their decision was accurately termed weductum or verdict that is a thing truly said whereas the phrase true verdict in the modern oath is not an accurate expression political dictionary word jury end foot note grand jury if jurors are bound to enforce all laws passed by the legislature it is a very remarkable fact that the oath of grand juries does not require them to be governed by the laws in finding indictments there have been various forms of oath administered to grand juries but by none of them that I recollect ever to have seen except those of the states of Connecticut and Vermont are they sworn to present men according to law the English form is given in the essay on grand juries written near 200 years ago and supposed to have been written by lord somers is as follows you shall diligently inquire and true presentment make of all such articles matters and things I shall be given you in charge and of all other matters and things as shall come to your knowledge touching this present service the king's counsel your fellows and your own you shall keep secret you shall present no person for hatred or malice neither shall you leave anyone unpresented for favor or affection for love or gain or any hopes thereof but in all things you shall present the truth the whole truth and nothing but the truth to the best of your knowledge so help you God this form of oath is doubtless quite ancient for the essay says our ancestors appointed it see essay page 33 to 34 on the obligations of this oath the essay says he asked how or in what manner the grand jury shall inquire the answer is ready according to the best of their understandings they only not the judges are sworn to search diligently to find out all treasons etc within their charge and they must and ought to use their own discretion in the way and manner of their inquiry no directions can legally be imposed upon them by any court or judges an honest jury will thankfully accept good advice from judges as their assistants but they are bound by their oaths to present the truth the whole truth and nothing but the truth to the best of their own not the judges knowledge neither can they without breach of that oath resign their consciences or blindly submit to the dictates of others therefore ought to receive or reject such advices as they judge them good or bad nothing can be more plain and express than the words of the oath are to this purpose the jurors need not search the law books nor tumble over heaps of old records for the explanation of them our greatest lawyers may from hence learn more certainly our ancient law in this case than from all the books in their studies the language wherein the oath is penned is known and understood by every man and the words in it have the same signification as they have wheresoever they are used the judges, without assuming to themselves a legislative power cannot put a new sense upon them other than according to their genuine, common meaning they cannot majestiorly impose their opinions upon the jury and make them forsake the direct words of the oath to pursue their glosses the grand inquests are bound to observe alike strictly every part of their oath and to use all just and proper ways which may enable them to perform it otherwise it were to say that after men had sworn to inquire diligently after the truth according to the best of their knowledge they were bound to forsake all the natural and proper means which their understanding suggest the discovery of it if it be commanded by the judges lords somers essay on grand juries page 38 one is here said so plainly enforceably of the oath and obligations of grand juries is equally applicable to the oath and obligations of petite juries in both cases the simple oaths of the jurors and not the instruction of the judges nor the statutes of kings nor legislatures are their legal guides to their duties note of course there can be no legal trial by jury either civil or criminal cases where the juror sworn to try the cases according to law end footnote end of chapter 3 part 4 chapter 3 part 5 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 Bethann trial by jury by Lysander Spooner chapter 3 part 5 section 4 the right of juries to fix the sentence the nature of the common law courts existing prior to Magna Carta such as the county courts the hundred courts the court lead and the court baron all prove what has already been proved from Magna Carta that in jury trials the juries fixed the sentence because in those courts there was no one but the jury who could fix it unless it were the sheriff bailiff or steward and no one will pretend that it was fixed by them the juries unquestionably gave the judgment in both civil and criminal cases that the juries were to fix the sentence under Magna Carta is also shown by statutes subsequent to Magna Carta a statute past 51 years after Magna Carta says that a baker for default in the weight of his bread debiat amaziari ver subire e uditium piloriae that is ought to be immersed or suffer the sentence of the pilroy and that a brewer for selling ale contrary to the assays debiat amaziari ver pati uditium tumbareli that is ought to be immersed or suffer judgment of the tumbarel 51 Henry III statute 6 1266 if the king the legislative power had had authority to fix the punishments of these offenses imperatively he would naturally have said these offenders shall be immersed and shall suffer judgment of the pilroy and tumbarel instead of the simply expressing the opinion that they ought to be punished in that manner the statute of Westminster past 60 years after Magna Carta provides that no city, borough, nor town nor any man be immersed without reasonable cause and according to the quantity of the trespass that is to say every freeman saving his freehold and a merchant saving his merchandise of allain his wainage and that by his or their peers III Edward VI 1275 the same statute 18 provides further that for as much as the common fine and immersement of the whole county and ire of the justices for false judgments or for other trespass is unjustly assessed by sheriffs and baritours in the shires so that the sum is many times increased and the parcels otherwise assessed than they ought to be to the damage of the people which be many times paid to the sheriffs and baritours which do not acquit the payers it is provided and the king wills that from henceforth such sums shall be assessed before the justices and ire before their departure by the oath of knights and other honest men upon all such is ought to pay and the justices shall cause the parcels to be put into their streets which shall be delivered up unto the exchequer and not the whole sum Statute III Edward I, Chapter 18 1275 Note Koch, as late as 1588 admits that immersements must be fixed by the peers 8 Koch's rep 1937 but he attempts wholly without success as it seems to me to show a difference between fines and immersements the statutes are very numerous running through the three or four hundred years immediately seceding Magna Carta in which fines, ransoms and immersements are spoken of as if they were the common punishments of offenses and as if they all meant the same thing if however any technical difference could be made out between them there is clearly none in principle and the word immersement as used in Magna Carta must be taken in its most comprehensive sense and footnote the following statute passed in 1341 125 years after Magna Carta providing for the trial of peers for the realm and the king's ministers contains a recognition of the principle of Magna Carta that the jury are to fix the sentence whereas before this time the peers of the land have been arrested and imprisoned and their temporalities, lands and tenements, goods and cattle are seized into the king's hands and some put to death without judgment of their peers it is accorded and assented no peer of the land officer nor other because of his office nor of things touching his office nor by any other cause shall be brought in judgment to lose his temporalities lands, tenements, goods and cattle nor to be arrested nor imprisoned outlawed, exiled, nor forejudged nor put to answer nor be judged but by award, sentence of the said peers in Parliament 15 Edward III Statute 1, Section 2 Section 4, the same statute provides that in every Parliament at the third day of every Parliament the king shall take in his hands the offices of all the ministers aforesaid, that is the Chancellor, Treasurer, Barons and Chancellor of the Exchequer the justices of the one bench and of the other justices assigned to the country steward and chamberlain of the king's house keeper of the privy seal treasurer of the wardrobe controllers and they that be chief deputed to abide nigh the king's son, Duke of Cornwall and so they shall abide four or five days except the offices of justices of the one place or the other justices assigned to the kings of Exchequer so always that they and all other ministers be put to answer to every complaint and of default be found in any of the said ministers by complaint or other manner and of that attained in Parliament he shall be punished by judgment of the peers and put out of his office and another convenient put in his place and upon the same our sovereign lord was to be pronounced and made execution without delay according to the judgment sentence of the said peers in the Parliament here is an admission that the peers were to fix the sentence or judgment and the king promises to make execution according to that sentence and this appears to be the law under which peers of the realm and the great officers of the crown were tried and sentenced for 400 years after its passage and for a time until this day the first case given in Hargrave's collection of English state trials is that of Alexander Neville archbishop of York Robert there Duke of Ireland Michael de la pole Earl of Suffolk and Robert Trislin lord chief justice of England with several others convicted of treason before the lords of parliament in 1388 the sentence in these cases were judged by the lords of parliament in the following terms as they are reported wherefore the said lords of parliament they are present as judges in parliament in this case by a saint of the king pronounced their sentence and did a judge the said archbishop Duke and Earl with Robert Trislin so appealed as the forth said to be guilty and convicted of treason and to be drawn and hanged as traitors and enemies to the king and kingdom and that their heir should be disinherited forever and their land and tenements goods and chattels forfeited to the king and that the temporalities of the archbishop of York should be taken into the king's hands also in the same case Sir John Hulled Sir William Burr Sir John Kerry Sir Roger Fullthorpe and John Lockton were by the lords temporal by the ascent of the king a judge to be drawn and hanged as traitors their heirs disinherited and their lands and tenements goods and chattels to be forfeited to the king also in the same case John Blake of counsel for the king and Thomas Usk under Sheriff of Middlesex having been convicted of treason the lords awarded by ascent of the king that they should both be hanged and drawn as traitors as open enemies to the king and kingdom and their heirs disinherited forever and their lands and tenements goods and chattels forfeited to the king also Simon Burleigh the king's chamberlain being convicted of treason by a joint consent of the king and lords sentence was pronounced against the said Simon Burleigh that he should be drawn from the town to try burn and there be hanged till he be dead and then have his head struck from his body also John Busham who was now sold to the king James Bo-reverse and John Salisbury Knights gentlemen of the privy chamber were in like manner condemned first Hargrave state trials first case here the sentences were all affixed by the peers with the ascent of the king but that the king should be consulted in his ascent obtained to the sentence pronounced by the peers does not imply deficiency of the power on their part to fix the sentence independently of the king there are obvious reasons why they might choose to consult the king and obtain his approbation of the sentence they were about to impose without supposing any legal necessity for their so doing so far as we can gather from the reports of state trials peers of the realm were usually sentenced by those who tried them with the ascent of the king but in some instances no mention is made of the ascent of the king as in the case of Loinal Earl of Middlesex Lord High Treasurer of England in 1624 400 years after Magna Carta where the sentence was as follows this High Court of Parliament doth adjudge that Loinal Earl of Middlesex now Lord Treasurer of England adjudges offices which he holds in this kingdom and shall hereafter be made incapable of any office place or employment in the state and commonwealth that he shall be imprisoned in the tower of London during the king's pleasure that he shall pay unto our sovereign lord the king a fine of 50,000 pounds that he shall never sit in Parliament any more and that he shall never come within the verge of the court 2nd Howell State Trials 1250 here was a peer of the realm and a minister of the king of the highest grade and if it were ever necessary to obtain the ascent of the king whose sentence is pronounced by the peers it would unquestionably have been obtained in this instance and his ascent would have appeared in the sentence Lord Bacon was sentenced by the House of Lords in 1620 no mention being made of the ascent of the king the sentence is in these words and therefore this High Court death a judge at the Lord V Count St. Albans Lord Chancellor of England shall undergo fine and ransom of 40,000 pounds that he shall be imprisoned in the tower during the king's pleasure that he shall forever be incapable of any office place or employment in the state or commonwealth that he shall never sit in Parliament nor come within the verge of the court and when it was demanded of him before sentence whether it were his hand that was subscribed to his confession and whether he would stand to it he made the following answer which implies that the Lords were the ones to determine his sentence My Lords my act, my hand, my heart I beseech your Lordships to be merciful to a broken reed First Hargrave State Trials 386-7 the sentence against Charles I 1648 after reciting the grounds of his cononation concludes in this form for all which treason and crimes this court death a judge that he said Charles Stewart as a tyrant, traitor, murderer and public enemy to the good people of this nation shall be put to death by the severing his head from his body the report then adds this sentence being read the president of the court spake as followeth this sentence now read and published is the act, sentence, judgment and resolution of the whole court First Hargrave State Charles 1037 unless it had been the received law of the land that those who tried a man should fix his sentence it would have required an act of parliament to fix the sentence of Charles and his sentence would have been declared to be the sentence of the law instead of the act, sentence, judgment and resolution of the court but the report of the proceedings in the trial of Thomas Earl of Macclesfield Lord High Chancellor of Great Britain before the house of lords for high crimes and misdemeanors in the execution of his office in 1725 is so full on this point and shows so clearly that it rested wholly with the lords to fix the sentence and that the ascent of the king was wholly unnecessary that I give the report somewhat at length After being found guilty the Earl addressed the lords for a mitigation of sentence as follows I am now to expect your lordship's judgment and I hope that you will be pleased to consider that I have suffered no small matter already in the trial in the expense I have been at the fatigue and what I have suffered other ways I have paid back ten thousand eight hundred pounds of the money already I have lost my office I have undergone the censure of both houses of parliament which is in itself a severe punishment etc etc on being interrupted he proceeded my lordships I submit whether this be not proper in mitigation of your lordship's sentence but whether it be or not I leave myself to your lordship's justice and mercy I am sure neither of them will be wanting and I entirely submit then the said Earl as also the managers were directed to withdraw and the house of lords ordered Thomas Earl of Macclesveld to be committed to the custody of the gentleman usher of the black rod and then proceeded to the consideration of what judgment that a sentence for he had already found guilty to give upon the impeachment against the said Earl the next day the commons with their speaker being present at the bar of the house of lords the speaker of the house of commons said as follows my lords the knights, citizens and burgesses and parliament assembled in the name of themselves and of all the commons of Great Britain did at this bar impeach Thomas Earl of Macclesveld of high crimes and misdemeanors and did exhibit articles of impeachment against him and have made good their charge I do therefore in the name of the knights citizens and burgesses in parliament assembled and of all the commons of Great Britain demand judgment sentence of your lordships against Thomas Earl of Macclesveld for the said high crimes and misdemeanors then the lord chief justice king speaker of the house of lords said Mr. Speaker the lords are now ready to proceed to judgment in the case by you mentioned Thomas Earl of Macclesveld the lords have unanimously found you guilty of high crimes and misdemeanors charged on you by the impeachment of the house of commons and do now, according to law proceed to judgment against you which I am ordered to pronounce their lordship's judgment is in this high court doth a judge that you, Thomas Earl of Macclesveld be fined in the sum of three thousand pounds unto our sovereign lord the king and that you shall be imprisoned in the tower of London and there kept in safe custody until you shall pay the said fine six Hargrave state trials seven sixty-two three and four this case shows the principle of Magna Carta that a man should be sentenced only by his peers was in force and acted upon as law in England so lightly as seventeen twenty-five five hundred years after Magna Carta so far as it applied to a peer of the realm but the same principle on this point that applies to a peer of the realm applies to every freeman the only difference between the two is that the peers of the realm have had influence enough to preserve their constitutional rights while the constitutional rights of the people have been trampled upon and rendered obsolete by the usurpation and corruption of the government and the courts section five the oaths of judges as further proof that the legislation of the king whether enacted with or without the consent and advice of his parliament was of no authority unless it were consistent with the common law and unless juries and judges saw fit to enforce it it may be mentioned that it is probable that no judge in England was ever sworn to observe the laws enacted either by the king alone or by the king with the advice of the consent of parliament the judges were sworn to do equal law in execution of right to all the king's subjects rich and poor without having regard to any person and that they will deny no man common right note common right was the common law first coax institutes 142a second ditto but they were not sworn to obey or execute any statutes of the king or the king and parliament indeed they were virtually sworn not to obey any statutes that are against the common right or contrary to the common law or law of the land but to certify the king thereof that is notify him that his statutes are against the common law and then proceed to execute the common law notwithstanding such legislation to the contrary the words of the oath on this point are these that ye deny no man common right by virtue of the king's letters nor none other man's nor for none other cause and in case any letters come to you contrary to the law that is the common law as will be seen on reference to the entire oath given in the note that ye do nothing by such letters but certify the king thereof and proceed to execute the law that is the common law notwithstanding the same letters when it is considered that the king was a sole legislative power and that he exercised his power to a great extent by orders and counsel and by rits and letters addressed oftentimes to the sheriff and other person and that his commands when communicated to his justices or any other person by letters or rits under seal had as much legal authority as laws promulgated in any other form whatever it will be seen that this oath of the justices absolutely required that they disregard any legislation that was contrary to common right or the common law and notify the king that it was contrary to common right or the common law and proceed to execute the common law notwithstanding such legislation note the oath of the justices is in these words ye shall swear that well unlawfully ye shall serve our lord the king and his people and that lawfully ye shall counsel the king in his business and that ye shall not counsel nor assent to anything which may turn him in damage or desertion in any manner way or color and that ye shall not know the damage or desertion of him whereof ye shall not cause him to be warned by yourself or by other and that ye shall do equal law in execution of right to all his subjects rich and poor without having any regard to any person and that ye shall take not by yourself or by other privilege nor a pertly gift nor reward of gold nor silver nor of any other thing that may turn to your prophet unless it be meat or drink and that of small value of any man that shall have any plea or process hanging before you as long as the same process shall be so hanging nor after for the same cause and that ye take no fee as long as ye shall be justice nor robe of any man great or small but of the king himself and that ye give none advice or counsel to no man great or small in no cause where the king is party and in case that any of what estate or condition they be come before you in your sessions in arms or otherwise against the peace or against the form of the statute thereof made to disturb execution of the common law mark the term common law or to menace the people that they may not pursue the law that ye shall cause their bodies to be arrested and put in prison and in case they be such that ye cannot arrest them that ye certify the king of their names and of their misprision hastily so that he may ordain a convenable remedy and that ye by yourself nor by other privately nor pertly maintain any plea or quarrel hanging in the king's court or elsewhere in the country and that ye deny no man common right by the king's letters nor none other man's nor for none other cause and in case any letters come to you contrary to the law that is the common law before mentioned that ye do nothing by such letters but certify the king thereof and proceed to execute the law the common law before mentioned notwithstanding the same letters and that ye shall do and procure the prophet of the king and his crown with all things where ye may reasonably do the same and in case ye be from henceforth found in default in any of the points that ye said ye shall be at the king's will of body, lands, and goods thereof to be done as shall please him as God you help and all saints 18 and where the third statute 4 1344 in footnote if there could be any doubt that such was the meaning of this oath that doubt would be removed by a statute passed by the king which fully explains this oath as follows Edward by the grace of God et cetera to the sheriff of Stafford greeting because that by diverse complaints made to us we have perceived that the law of the land which we by our oath are bound to maintain is the less well kept and the execution of the same disturbed many times by maintenance and procurement as well in the court as in the country we greatly moved of conscience in this matter and for this cause design as much for the pleasure of God and ease and quietness of our subjects as to save our conscience and for to save and keep our said oath by the ascent of the great men and otherwise men of our council we have ordained these things following first we have commanded all our justices that they shall from henceforth do equal law and execution of right to all our subjects rich and poor without having regard to any person and without omitting to do right for any letters or commandment which may come to them from us or from any other or by any other cause and if that any letters rits or commandments come to the justices or to other deputed to do law and right according to the usage of the realm in disturbance of the law or the execution of the same or of right to the parties the justices and other aforesaid shall proceed and hold their courts and processes where the pleas and matters be depending before them as if no such letters rits or commandments were come to them and they shall certify us and our council of such commandments which be contrary to the law that is the law of the land or common law as aforesaid note that the terms law and right as used in this statute mean the common law is shown by the preamble which declares the motive of the statute to be that the law of the land the common law which we the king by our oath or bound to maintain may be the better kept etc and footnote and to the intent that our justices shall do even right to all people in the manner of foresaid without more favors showing to one than to another we have ordained and caused our said justices to be sworn that they shall not from henceforth as long as they shall be in the office of justice take fee nor robe of any man but of our self and that they shall take no gift nor reward by themselves nor by other of any man that have to do before them by any way except meat and drink and that of small value and that they shall give no council to great men or small in case where we be party or which do or may touch us in any point upon pain to be at our will body lands and goods to do thereof as shall please us in case they do contrary and for this cause we have increased the fees of the same our justices in such manner as it ought reasonably to suffice them 20 Edward the third chapter 1 1346 other statutes of similar tenor have been enacted as follows it is accorded and established that it shall not be commanded by the great seal nor the little seal to disturb or delay common right and though such commandments do come the justices shall not therefore leave omit to do right in any point statute 2 Edward the third chapter 8 1328 that by commandment of the great seal or privy seal no point to this statute shall be put in delay nor that the justices of whatsoever place it be shall let omit to do the common law by commandment which shall come to them under the great seal or the privy seal 14 Edward the third statute 1 chapter 14 1340 it is ordained and established that neither letters of the signet nor the king's privy seal shall be from henceforth sent in damage or prejudice of the realm nor disturbance of the law the common law 11 Richard the second chapter 10 1387 it is perfectly apparent from these statutes and from the oath administered to the justices that it was a matter freely confessed by the king himself that his statutes were of no validity if contrary to the common law or common right the oath of the justices before given is I presume the same that has been administered to judges in England from the day when it was first prescribed to them 1344 until now I do not find from the English statutes that the oath has ever been changed the essay on ground juries before referred to and supposed to have been written by the courtiers mentions this oath page 73 as being still administered to judges that is in the time of Charles II more than 300 years after the oath was first ordained if the oath has never been changed it follows that judges have not only never been sworn to support any statutes whatever of the king or of parliament but that for 500 years past have been sworn to treat as invalid all statutes they were contrary to the common law end of chapter 3 part 5