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CHAPTER XII: The Influence of these Changes upon the Jurisdiction and Authority of the feudal Lords. - John Millar, An Historical View of the English Government 
An Historical View of the English Government, From the Settlement of the Saxons in Britain to the Revolution in 1688, in four volumes, edited by Mark Salber Philips and Dale R. Smith, introduction by Mark Salber Philips (Indianapolis: Liberty Fund, 2006).
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The Influence of these Changes upon the Jurisdiction and Authority of the feudal Lords.
The advancement of the Anglo-Saxon vassals and peasants to greater security and freedom, and the separation of the trading people from the class of husbandmen, could not fail to limit the authority of the superior, and more especially to affect the state of his jurisdiction. When his military retainers held their benefices precariously, and when the other members of his barony were either bondmen, or merely tenants at will, he found himself under no restraint, in deciding their differences, and in punishing their offences; but after the former had obtained hereditary fiefs, and a great proportion of the latter had been exalted to the rank of soccage-vassals, he was obliged to relax his claim to their obedience, and to distribute justice among them with greater moderation and circumspection.
The retainers of every feudal superior were<328> bound, not only to the performance of military or other services, but also to assist him in maintaining good order and tranquillity within his barony; and therefore, when any of them complained of injustice from another, or was accused of a crime, the baron found it expedient, instead of deciding by virtue of his own authority, to call a number of his other vassals, and to proceed with their advice and concurrence in trying the cause. This expedient was the most equitable for the person concerned in the trial, as well as the best calculated for giving weight to the decision. The assessors of the judges were the pares curiae,1 men of the same rank with one another, and with the parties; they were chosen occasionally, and varied in each cause, to avoid burdening any individual more than his just proportion; and they were commonly selected from the neighbourhood of the place where the accusation or dispute had taken its rise, that, from their own private knowledge, they might be enabled to form a better judgment of the facts in question.
Thus the trial by an inquest, or jury, which had formerly taken place in the tribunals of<329> the shire, and of the hundred, was introduced into those of a feudal barony. The causes, however, of this institution, in the former and in the latter, were somewhat different. A jury was found convenient, in the courts of the shire, and of the hundred, to supersede the attendance of all their members; and might be regarded as a sort of committee, in place of a full and regular meeting. In the courts of the baron, its interpositions became necessary, in place of the decisions formerly given by the judge himself, in order to supply his deficience in authority over vassals whose fiefs had been secured to them by a permanent right. A jury was therefore an institution less popular than that which had formerly obtained in the county or the hundred courts, but more so, than the mode of jurisdiction originally displayed in the courts of the baron. It is reasonable, at the same time, to suppose, that, when allodial proprietors had been changed into vassals, the custom of jury-trials2 in the courts of the former, would facilitate the introduction of a similar practice in the judicial establishments of the latter.
That this form of trial obtained universally<330> 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 law-suits of every sort, concerning the freemen or vassals of a barony, were determined by the pares curiae; and that the judge took little more upon him, than to regulate the method of proceeding, or to declare the verdict of the jury.
The number of jurymen was originally varied in each cause, according as the opulence and power of the parties, or the magnitude of the dispute, rendered it more or less difficult to enforce the decision. So little, after all, was the authority of the court, that, in many cases, the party aggrieved by the verdict assumed the privilege of challenging the jurymen to single combat.* From the progress of regular government, and in consequence of the disposition among mankind to be governed by general rules, a certain number of jurymen became customary in ordinary<331> causes; and at last was universally established. From accidental circumstances, of little importance, a different number has been established in different countries; as that of twelve in England and fifteen in Scotland.
With respect to the time when trials by jury were first introduced into the court of every feudal barony, we are left in the same obscurity, as concerning their previous introduction among the allodial proprietors, in the courts of the hundred and of the county. But considering the circumstances from which the superior was induced to adopt this mode of procedure, there is ground to believe that it arose upon the establishment of hereditary fiefs, and became gradually more universal, according as the number of the feudal tenants, who had obtained a perpetual right to their possessions, was increased.
In this view, it seems probable that the practice of juries, in the baron-courts, was not very common in England till near the end of the Anglo-Saxon government. In the opinion of some antiquaries,3 the first vestige of a jury-trial, in the English history, is posterior to the Norman invasion; a mistake<332> which appears to have arisen from the supposition, that before this period hereditary fiefs were unknown in England.
Though the fact seems now to be admitted, that jury-trials were established in the baron courts of every feudal kingdom, yet the origin of that institution has been the subject of much doubt and controversy. Some authors have thought that jurymen were originally compurgators,4 called by a defendant, to swear that they believed him innocent of the facts with which he was charged. In the church courts, a person accused of a crime was understood to be guilty, unless he could clear himself by what was called the oath of purgation; and in some cases, unless his own oath was confirmed by that of a number of other persons acquainted with his behaviour. The injustice of this general presumption of guilt, the very opposite of what should be entertained in every court of justice, was the less observable, as the consequence of it was merely to draw upon the guilty person a spiritual admonition, or censure, for the good of his soul. From the influence of ecclesiastical procedure, the same rule, however, was after-<333>wards adopted in the temporal courts; where it came to be much more oppressive.
But the province of compurgators, in those courts, and that of jurymen, were so totally different, as to make it scarcely possible to conceive that the latter could arise out of the former. Compurgators were merely witnesses; jurymen were, in reality, judges. The former were called to confirm the oath of the party, by swearing, according to their belief, that he had told the truth: the latter were appointed to try, by witnesses, and by all other means of proof, whether he was innocent or guilty. Compurgators, for this reason, were called by the party himself: the jury, on the contrary, were named by the magistrate.
In consequence of the different departments, occupied by these two descriptions of men, it should seem that, in most of the feudal governments, they existed at one and the same time; and that juries were accustomed to ascertain the truth of facts, by the defendant’s oath of purgation, together with that of his compurgators. We can have no doubt that this was formerly the practice; since it is,<334> even at present, retained by the English, in what is called the wager of law.5
There are two particulars in which we discover a resemblance between the procedure of compurgators and of jurymen; whence, in all probability, the opinion abovementioned has arisen. Both of them were obliged to swear, that they would tell the truth; and both were subjected to confinement until they had given their declaration. But these regulations concerning jurymen afford no proof that they were ever considered in the light of compurgators. 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. It was, at the same time, suspected, that individuals drawn occasionally from the common mass of the people, to give judgment in a law-suit, might be exposed to improper influence; for which reason precautions were taken to prevent their having the least intercourse with the parties or their connexions.<335>
As to the unanimity required in the English juries, a circumstance in which they agree with the ancient compurgators, it has not been universally established in the feudal governments. President Montesquieu,6 at the same time, accounts for it, from a point of honour observed by the pares curiae in their judicial decisions, that they should agree with one another in pronouncing a verdict; because they were obliged to fight either of the parties who might give them the lie.
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. Notwithstanding the freedom acquired by the mercantile people, they still submitted to the jurisdiction of that person to whom they were indebted for protection, and were reduced by him under a system of government, similar to that which he established among his vassals. In as much as they held lands, for which they paid him a certain rent, they were in reality a species of feudal tenants.
The ancient jurisdiction of the greater thanes, or feudal superiors, came thus to be<336> exercised in two different courts. The one, in which causes were determined with the assistance of a jury, took cognizance of the military and soccage vassals, together with the inhabitants of the trading towns, under the protection of the superior. The other, which proceeded without that formality, was held for the trial of such members of the barony as were still in a state of greater dependence. The former is that which, according to some authors, was properly called the court-leet; being the court of the Liti, or free people. The latter, in which the superior retained his ancient authority, received by way of distinction, it is said, the general appellation of the court-baron.*
It is worthy of notice, that the king, considered as a feudal superior, was in the same circumstances with the greater thanes; and that, by the gradual multiplication of his vassals, his authority over them underwent a<337> similar limitation. The same regulations, therefore, concerning the distribution of justice by the intervention of juries, with the same distinction in this respect between his vassals and bondmen, 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.
The improvements which I have mentioned, in the state of the feudal courts, could not fail to produce a more equal and impartial distribution of justice; and this circumstance, together with the general advancement of civil society, contributed to increase the business of those tribunals. From the greater diffusion of property among the people of inferior condition, law-suits became somewhat more numerous; and from their being frequently decided by men of the same rank with the parties, were likely to procure a fuller and more deliberate hearing. As the exercise of jurisdiction was thus rendered more tedious and burdensome, the great lords, as well as the king, who had been accustomed to preside in the trial both of civil and criminal causes, within their several baronies, were less<338> disposed to give the necessary attendance; and by appointing deputy judges, endeavoured to relieve themselves from a great part of the labour. The same circumstances which gave rise to these inferior officers, contributed afterwards to enlarge their powers; and from the negligence of their constituents, who seldom interfered in controuling their decisions, and at last intirely abandoned the employment of judging, they became the ordinary magistrates in the several demesnes or territories committed to their direction.
The transference of jurisdiction, from the primitive judges to their deputies, laid a foundation for one of the most important alterations in the system of judicial policy. The executive and judiciary powers, with which every feudal baron was originally invested, were in this manner separated from each other; and the exercise of the latter became the sole occupation of particular persons; who, upon that account, were likely to give greater application, as well as to acquire more experience and knowledge in the determination of law-suits. The judges of a barony, though nominated by the baron, had necessarily their<339> own views of right and wrong; and having a character to support, might be supposed, in some cases, to conduct themselves without regard to the interest of their constituents. It happened likewise from the natural course of things, that as the most opulent vassals were found the best qualified for maintaining the dignity of a judge, the same persons were frequently enabled to secure the office during life, and even sometimes to render it hereditary. In either case the judge became in a great measure independent of the feudal lord from whom his authority had been derived. It must be acknowledged, however, that long after the period which we are now examining, the king’s judges continued under a precarious appointment.
A distinguished political author has pointed out the separation of the judicial power from the king’s prerogative, as one of the great sources of the liberty enjoyed by the subjects of Britain.7 To those who speculate upon the conduct of human affairs, it is amusing to discover, that this important regulation was neither introduced from any foresight of its beneficial consequences, nor extorted from the<340> monarch by any party that were jealous of his power; but was merely the suggestion of indolence; and was adopted by the king, in common with other feudal superiors, to relieve them from a degree of labour and attention which they did not chuse to bestow. It was, in reality, a consequence of the general progress of society, by which employments of every sort, both liberal and mechanical, have been distributed among different individuals, and have become the object of separate professions and trades.
As soon as the business of a judge became the sole employment of particular persons, it was necessary that they should obtain a maintenance in return for their labour. This was acquired without any difficulty, from the very exercise of their profession; as the superior by whom they were appointed, empowered them to exact a fee or perquisite from every party whose cause they had occasion to determine. These exactions, which came to be fixed, in every step of judicial procedure, according to the degree of trouble it was understood to produce, were not only sufficient for maintaining the judge, but afforded also an emolument to<341> the superior, who demanded from his deputy a strict account of the fees he had levied. To prevent any embezzlement in this respect, a clerk was appointed to sit in court along with the judge, and to keep a record of judicial proceedings. Such was probably the first intention, not only in England, but in all the feudal countries, of recording the decisions of a judge; though the practice was afterwards made subservient to other purposes of the highest utility.
Of the fees, or perquisites, drawn by the judges under the appointment of the crown, the sovereign acquired a considerable proportion, which formed an additional branch of the public revenue.
From this method of maintaining judges, they had obviously an interest to increase their perquisites by encouraging law-suits, and multiplying the forms of judicial procedure. Hence there occurred a new reason for the interposition of juries in the court of a barony; that they might prevent the unreasonable delay of justice. It may, at the same time, perhaps be admitted, that the interested activity and vigilance of the magistrate was, in that<342> early and rude age, more beneficial in preventing disorder and violence, than it was hurtful, either by promoting litigiousness, or by introducing tedious and absurd formalities into the system of judicial discussion.<343>
[1. ]“Peers of the court.”
[2. ]For Smith’s teaching on the same subject, see LJ, 283–87, 425–26.
[* ]Spirit of Laws.
[3. ]Here as elsewhere Millar tends to emphasize the continuity of English institutions, pre- and post-1066.
[4. ]A compurgator was a witness to the character of the accused (or, in religious courts, to his orthodoxy).
[5. ]An offer to make an oath of innocence or nonindebtedness, to be supported by the oaths of compurgators.
[6. ]Montesquieu, Charles Louis de Secondat, baron de (1689–1755): French philosopher and jurist whose most influential works include the Lettres persanes (1721) and De l’esprit des lois (1748). Montesquieu’s comparative study of the “spirit of the laws” was a foundational text for the writers of the Scottish Enlightenment.
[* ]Bacon’s discourse on the government of England, collected from the MS. notes of Mr. Selden, chap. 33. Also The Mirror. [[Both are courts with lesser jurisdiction. The court leet was held periodically within a hundred or lordship, before the lord or his steward. It had jurisdiction over petty offenses and civil affairs. The court baron was an assembly of the freehold tenants of a manor under the presidency of the lord or his steward. Such a court had jurisdiction in civil actions arising within the manor. Millar’s note again cites Nathaniel Bacon’s discussion: see his Historical and Political Discourse, 4th ed. (London, 1739), 49.
[7. ]Presumably a reference to Montesquieu.