Front Page Titles (by Subject) SECTION II.: The Ancient Common Law Juries were mere Courts of Conscience. - An Essay on the Trial by Jury
The Online Library of Liberty
A project of Liberty Fund, Inc.
SECTION II.: The Ancient Common Law Juries were mere Courts of Conscience. - Lysander Spooner, An Essay on the Trial by Jury 
An Essay on the Trial by Jury (Boston: John P. Jewett and Company, 1852).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
The Ancient Common Law Juries were mere Courts of Conscience.
But it is in the administration of justice, or of law, that the freedom or subjection of a people is tested. If this administration be in accordance with the arbitrary will of the legislator—that is, if his will, as it appears in his statutes, be the highest rule of decision known to the judicial tribunals,—the government is a despotism, and the people are slaves. If, on the other hand, the rule of decision be those principles of natural equity and justice, which constitute, or at least are embodied in, the general conscience of mankind, the people are free in just so far as that conscience is enlightened.
That the authority of the king was of little weight with the judicial tribunals, must necessarily be inferred from the fact already stated, that his authority over the people was but weak. If the authority of his laws had been paramount in the judicial tribunals, it would have been paramount with the people, of course; because they would have had no alternative but submission. The fact, then, that his laws were not authoritative with the people, is proof that they were not authoritative with the tribunals—in other words, that they were not, as matter of course, enforced by the tribunals.
But we have additional evidence that, up to the time of Magna Carta, the laws of the king were not binding upon the judicial tribunals; and if they were not binding before that time, they certainly were not afterwards, as has already been shown from Magna Carta itself. It is manifest from all the accounts we have of the courts in which juries sat, prior to Magna Carta, such as the court-baron, the hundred court, the court-leet, and the county court, that they were mere courts of conscience, and that the juries were the judges, deciding causes according to their own notions of equity, and not according to any laws of the king, unless they thought them just.
These courts, it must be considered, were very numerous, and held very frequent sessions. There were probably seven, eight, or nine hundred courts a month, in the kingdom; the object being, as Blackstone says, “to bring justice home to every man’s door.” (3 Blackstone, 30.) The number of the county courts, of course, corresponded to the number of counties, (36.) The court-leet was the criminal court for a district less than a county. The hundred court was the court for one of those districts anciently called a hundred, because, at the time of their first organization for judicial purposes, they comprised (as is supposed) but a hundred families.* The court-baron was the court for a single manor, and there was a court for every manor in the kingdom. All these courts were holden as often as once in three or five weeks; the county court once a month. The king’s judges were present at none of these courts; the only officers in attendance being sheriffs, bailiffs, and stewards, merely ministerial, and not judicial, officers; doubtless incompetent, and, if not incompetent, untrustworthy, for giving the juries any reliable information in matters of law, beyond what was already known to the jurors themselves. And yet these were the courts, in which was done all the judicial business, both civil and criminal, of the nation, except appeals, and some of the more important and difficult cases.* It is plain that the juries, in these courts, must, of necessity, have been the sole judges of all matters of law whatsoever; because there was no one present, but sheriffs, bailiffs, and stewards, to give them any instructions; and surely it will not be pretended that the jurors were bound to take their law from such sources as these.
In the second place, it is manifest that the principles of law, by which the juries determined causes, were, as a general rule, nothing else than their own ideas of natural equity, and not any laws of the king; because but few laws were enacted, and many of those were not written, but only agreed upon in council.† Of those that were written, few copies only were made, (printing being then unknown,) and not enough to supply all, or any considerable number, of these numerous courts. Beside and beyond all this, few or none of the jurors could have read the laws, if they had been written; because few or none of the common people could, at that time, read. Not only were the common people unable to read their own language, but, at the time of Magna Carta, the laws were written in Latin, a language that could be read by few persons except the priests, who were also the lawyers of the nation. Mackintosh says, “the first act of the House of Commons composed and recorded in the English tongue,” was in 1415, two centuries after Magna Carta.‡ Up to this time, and for some seventy years later, the laws were generally written either in Latin or French; both languages incapable of being read by the common people, as well Normans as Saxons; and one of them, the Latin, not only incapable of being read by them, but of being even understood when it was heard by them.
To suppose that the people were bound to obey, and juries to enforce, laws, many of which were unwritten, none of which they could read, and the larger part of which (those written in Latin) they could not translate, or understand when they heard them read, is equivalent to supposing the nation sunk in the most degrading slavery, instead of enjoying a liberty of their own choosing.
Their knowledge of the laws passed by the king was, of course, derived only from oral information; and “the good laws,” as some of them were called, in contradistinction to others—those which the people at large esteemed to be good laws—were doubtless enforced by the juries, and the others, as a general thing, disregarded.*
That such was the nature of judicial proceedings, and of the power of juries, up to the time of Magna Carta, is further shown by the following authorities.
“The sheriffs and bailiffs caused the free tenants of their bailiwics to meet at their counties and hundreds; at which justice was so done, that every one so judged his neighbor by such judgment as a man could not elsewhere receive in the like cases, until such times as the customs of the realm were put in writing, and certainly published.
“And although a freeman commonly was not to serve (as a juror or judge) without his assent, nevertheless it was assented unto that free tenants should meet together in the counties and hundreds, and lords courts, if they were not specially exempted to do such suits, and there judged their neighbors.”
—Mirror of Justices, p. 7, 8.
Gilbert, in his treatise on the Constitution of England, says:
“In the county courts, if the debt was above forty shillings, there issued a justicies (a commission) to the sheriff, to enable him to hold such a plea, where the suitors (jurors) are judges of the law and fact.”
—Gilbert’s Cases in Law and Equity, &c., &c., 456.
All the ancient writs, given in Glanville, for summoning jurors, indicate that the jurors judged of everything, on their consciences only. The writs are in this form:
“Summon twelve free and legal men (or sometimes twelve knights) to be in court, prepared upon their oaths to declare whether A or B have the greater right to the land (or other thing) in question.” See Writs in Beames’ Glanville, p. 54 to 70, and 233-306 to 332.
Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the fact that the jurors were the judges. He says:
“By one law, every one was to be tried by his peers, who were of the same neighborhood as himself. * * By another law, the judges, for so the jury were called, were to be chosen by the party impleaded, after the manner of the Danish nembas; by which, probably, is to be understood that the defendant had the liberty of taking exceptions to, or challenging the jury, as it was afterwards called.”
—Crabbe’s History of the English Law, p. 55.
“The great court for civil business was the county court; held once every four weeks. Here the sheriff presided; but the suitors of the court, as they were called, that is, the freemen or landholders of the county, were the judges; and the sheriff was to execute the judgment. * * *
“The hundred court was held before some bailiff; the leet before the lord of the manor’s steward.† * *
“Out of the county court was derived an inferior court of civil jurisdiction, called the court-baron. This was held from three weeks to three weeks, and was in every respect like the county court;” (that is, the jurors were judges in it;) “only the lord to whom this franchise was granted, or his steward,presided instead of the sheriff.”
—1 Reeve’s History of the English Law, p. 7.
Chief Baron Gilbert says:
“Besides the tenants of the king, which held per baroniam, (by the right of a baron,) and did suit and service (served as judges) at his own court; and the burghers and tenants in ancient demesne, that did suit and service (served as jurors or judges) in their own court in person, and in the king’s by proxy, there was also a set of freeholders, that did suit and service (served as jurors) at the county court. These were such as anciently held of the lord of the county, and by the escheats of earldoms had fallen to the king; or such as were granted out by service to hold of the king, but with particular reservation to do suit and service (serve as jurors) before the king’s bailiff; because it was necessary the sheriff, or bailiff of the king, should have suitors (jurors) at the county court, that the business might be despatched. These suitors are the pares (peers) of the county court, and indeed the judges of it; as the pares (peers) were the judges in every court-baron; and therefore the king’s bailiff having a court before him, there must be pares or judges, for the sheriff himself is not a judge; and though the style of the court is Curia prima Comitatus E. C. Milit.’ vicecom’ Comitat’ præd’ Tent’ apud B., &c. (First Court of the county, E. C. knight, sheriff of the aforesaid county, held at B., &c.); by which it appears that the court was the sheriff’s; yet, by the old feudal constitutions, the lord was not judge, but the pares (peers) only; so that, even in a justicies, which was a commission to the sheriff to hold plea of more than was allowed by the natural jurisdiction of a county court, the pares (peers, jurors) only were judges, and not the sheriff; because it was to hold plea in the same manner as they used to do in that (the lord’s) court.”
—Gilbert on the Court of Exchequer, ch. 5, p. 61-2.
“It is a distinguishing feature of the feudal system, to make civil jurisdiction necessarily, and criminal jurisdiction ordinarily, coëxtensive with tenure; and accordingly there is inseparably incident to every manor a court-baron (curia baronum), being a court in which the freeholders of the manor are the sole judges, but in which the lord, by himself, or more commonly by his steward, presides.”
—Political Dictionary, word Manor.
The same work, speaking of the county court, says: “The judges were the freeholders who did suit to the court.” See word Courts.
“In the case of freeholders attending as suitors, the county court or court-baron, (as in the case of the ancient tenants per baroniam attending Parliament,) the suitors are the judges of the court, both for law and for fact, and the sheriff or the under sheriff in the county court, and the lord or his steward in the court-baron, are only presiding officers, with no judicial authority.”
—Political Dictionary, word Suit.
“Court, (curtis, curia aula); the space enclosed by the walls of a feudal residence, in which the followers of a lord used to assemble in the middle ages, to administer justice, and decide respecting affairs of common interest, &c. It was next used for those who stood in immediate connexion with the lord and master, the pares curiæ, (peers of the court,) the limited portion of the general assembly, to which was entrusted the pronouncing of judgment,” &c.
—Encyclopedia Americana, word Court.
“In court-barons or county courts the steward was not judge, but the pares (peers, jurors); nor was the speaker in the House of Lords judge, but the barons only.”
—Gilbert on the Court of Exchequer, ch. 3, p. 42.
Crabbe, speaking of the Saxon times, says:
“The sheriff presided at the hundred court, * * and sometimes sat in the place of the alderman (earl) in the county court.”
The sheriff afterwards became the sole presiding officer of the county court.
Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more than three hundred years after Magna Carta, in describing the difference between the Civil Law and the English Law, says:
“Judex is of us called Judge, but our fashion is so divers, that they which give the deadly stroke, and either condemn or acquit the man for guilty or not guilty, are not called judges, but the twelve men. And the same order as well in civil matters and pecuniary, as in matters criminal.”
—Smith’s Commonwealth of England, ch. 9, p. 53, Edition of 1621.
Court-Leet. “That the leet is the most ancient court in the land for criminal matters, (the court-baron being of no less antiquity in civil,) has been pronounced by the highest legal authority. * * Lord Mansfield states that this court was coeval with the establishment of the Saxons here, and its activity marked very visibly both among the Saxons and Danes. * * The leet is a court of record for the cognizance of criminal matters, or pleas of the crown; and necessarily belongs to the king; though a subject, usually the lord of the manor, may be, and is, entitled to the profits, consisting of the essoign pence, fines, and amerciaments.
“It is held before the steward, or was, in ancient times, before the bailiff, of the lord.”
—Tomlin’s Law Dict., word Court-Leet.
Of course the jury were the judges in this court, where only a “steward” or “bailiff” of a manor presided.
“No cause of consequence was determined without the king’s writ; for even in the county courts, of the debts, which were above forty shillings, there issued a Justicies (commission) to the sheriff, to enable him to hold such plea, where the suitors are judges of the law and fact.”
—Gilbert’s History of the Common Pleas, Introduction, p. 19.
“This position” (that “the matter of law was decided by the King’s Justices, but the matter of fact by the pares”) “is wholly incompatible with the common law, for the Jurata (jury) were the sole judges both of the law and the fact.”
—Gilbert’s History of the Common Pleas, p. 70, note.
“We come now to the challenge; and of old the suitors in court, who were judges, could not be challenged; nor by the feudal law could the pares be even challenged, Pares qui ordinariam jurisdictionem habent recusari non possunt; (the peers who have ordinary jurisdiction cannot be rejected;) “but those suitors who are judges of the court, could not be challenged; and the reason is, that there are several qualifications required by the writ, viz., that they be liberos et legales homines de vincineto (free and legal men of the neighborhood) of the place laid in the declaration,” &c., &c.
—Ditto, p. 93.
“Ad questionem juris non respondent Juratores.” (To the question of law the jurors do not answer.) “The Annotist 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 matter of law, they may then request him to explain it to them, which when he hath done, and they are thus become well informed, they, and they only, become competent judges of the matter of law. And this is the province of the judge on the bench, namely, to show, or teach the law, but not to take upon him the trial of the delinquent, either in matter of fact or in matter of law.” (Here various Saxon laws are quoted.) “In neither 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 tantamount to the judge on the bench) is to take upon him to judge the delinquent in any sense whatever, the sole purport of his office is to teach the secular or worldly law.”
—Ditto, p. 57, 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.”
—Introd. to Gilbert on Tenures, p. 12.
Hallam says: “A respectable class of free socagers, 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 Domes-day Book. * * They undoubtedly were suitors to the court-baron of the lord, to whose soc, or right of justice, they belonged. They were consequently judges in civil causes, determined before the manorial tribunal.”
—2 Middle Ages, 481.
Stephens adopts as correct the following quotations from Blackstone:
“The Court-Baron is a court incident to every manor in the kingdom, to be holden by the steward within the said manor.” * * It “is a court of common law, and it is the court before the freeholders who owe suit and service to the manor,” (are bound to serve as jurors in the courts of the manor,) “the steward being rather the registrar than the judge. * * The freeholders’ court was composed of the lord’s tanants, who were the pares (equals) of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its most important business was to determine, by writ of right, all controversies relating to the right of lands within the manor.”
—3 Stephens’ Commentaries, 392-3. 3 Blackstone, 32-3.
“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 the register.”
—3 Stephens, 394. 3 Blackstone, 33.
“The County Court is a court incident to the jurisdiction of the sheriff. * * The freeholders of the county are the real judges in this court, and the sheriff is the ministerial officer.”
—3 Stephens, 395-6. 3 Blackstone, 35-6.
Blackstone describes these courts, as courts “wherein injuries were redressed in an easy and expeditious manner, by the suffrage of neighbors and friends.”
—3 Blackstone, 30.
“When we read of a certain number of freemen chosen by the parties to decide in a dispute—all bound by oath to vote in foro conscientia—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.”
—Dunham’s Middle Ages, Sec. 2, B. 2, Ch. 1. 57 Lardner’s Cab. Cyc., 60.
“The bishop and the earl, or, in his absence, the gerefa, (sheriff,) and sometimes both the earl and the gerefa, presided at the schyre-mote (county court); the gerefa (sheriff) usually alone presided at the mote (meeting or court) of the hundred. In the cities and towns which were not within any peculiar jurisdiction, there was held, at regular stated intervals, a burgh mote, (borough court,) for the administration of justice, at which a gerefa, or a magistrate appointed by the king, presided.”
—Spence’s Origin of the Laws and Political Institutions of Modern Europe, p. 444.
“The right of the plaintiff and defendant, and of the prosecutor and criminal, to challenge the judices, (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 the First; but I cannot discover, from the Anglo-Saxon laws or histories, that before the Conquest the parties had any general right of challenge; indeed, had such 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 administration of the common justice of the kingdom seems to be wholly dispensed in the county courts, hundred courts, and courts-baron; 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 Justitiarius Angliæ. This doubtless bred great inconvenience, uncertainty, and variety in the laws, viz.:
“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.”
—1 Hale’s History of the Common Law, p. 246.
“In all these tribunals,” (county court, hundred court, &c.,) “the judges were the free tenants, owing suit to the court, and afterwards called its peers.”
—1 Lingard’s History of England, 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.”
—3 Henry’s History of Great Britain, 346.
“Alfred cantoned his kingdom, first into Trihings and Lathes, as they are still called in Kent and other places, consisting of three or four Hundreds; in which, the freeholders being judges, such causes were brought as could not be determined in the Hundred court.”
—Tyrrell’s Introduction to the History of England, p. 80.
Of the Hundred Court he says:
“In this court anciently, one of the principal inhabitants, called the alderman, together with the barons of the Hundred*
—id est the freeholders—was judge.”—Ditto, p. 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, p. 86.
“A statute, emphatically termed the ‘Grand Assize,’ 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.”
—1 Palgrave’s Rise and Progress of 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 true’ who were impanelled 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 obstinacy, 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 impanelled to adjudge the proportion due to the sovereign; and this course was not essentially varied, even after the right of granting aids to the crown was fully acknowledged to be vested in the parliament of the realm. The 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 its 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 main-spring of the machinery of remedial justice existed in the franchise of the lower and lowest orders of the political hierarchy. Without the suffrage of the yeoman, the burgess, and the churl, the sovereign could not exercise the most important and most essential function of royalty; from them he received the power of life and death; he could not wield the sword of justice until the humblest of his subjects placed the weapon in his hand.”
—1 Palgrave’s Rise and Progress of the English Constitution, 274-7.
Coke says, “The court of the county is no court of record,*and the suitors are the judges thereof.”
—4 Inst., 266.
Also, “The court of the Hundred is no court of record, and the suitors be thereof judges.”
—4 Inst., 267.
Also, “The court-baron is a court incident to every manor, and is not of record, and the suitors be thereof judges.”
—4 Inst., 268.
Also, “The court of ancient demesne is in the nature of a court-baron, wherein the suitors are judges, and is no court of record.”
—4 Inst., 269.
Millar says, “Some authors have thought that jurymen were originally compurgators, called by a defendant to swear that they believed him innocent of the facts with which he was charged. . . But . . 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, (in his oath of purgation;) the latter were appointed to try, by witnesses, and by all other means of proof, whether he was innocent or guilty. . . Juries were accustomed to ascertain the truth of facts, by the defendant’s oath of purgation, together with that of his compurgators. . . Both of them (jurymen and compurgators) 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.”
—1 Millar’s Hist. View of Eng. Gov., ch. 12, p. 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, p. 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, p. 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 the ordinary 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, vol. 2, p. 292.
Speaking of the times of Edward the First, (1272 to 1307,) Millar 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.”
—Same, vol. 2, p. 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 pares curiæ (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, vol. 1, ch. 12, p. 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 allodial courts of the county, or of the hundred, and afterwards in the baron-courts of every feudal superior.”
—Same, vol. 2, p. 296.
Palgrave says that in Germany “The Graff (gerefa, sheriff) placed himself in the seat of judgment, and gave the charge to the assembled free Echevins, warning them to pronounce judgment according to right and justice.”
—2 Palgrave, 147.
Also, that, in Germany, “The Echevins were composed of the villanage, 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.”
Palgrave also says, “Scotland, in like manner, had the laws of Burlaw, or Birlaw, which were made and determined by the neighbors, elected by common consent, in the Burlaw or Birlaw courts, wherein knowledge was taken of complaints between neighbor and neighbor, which men, so chosen, were judges and arbitrators, and called Birlaw men.”
—1 Palgrave’s Rise, &c., p. 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 in 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.*
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 specially 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 populous districts, which, in their proceedings, so vary from the course 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 council; which, however, was certainly insufficient for that purpose, and illegal, till confirmed by statute 3 Jac. I., ch. 15, which has since been explained and amended by statute 14 Geo. II., ch. 10. The constitution is this: two aldermen and four commoners sit twice a week to hear all causes of debt not exceeding the value of forty 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. * * * Divers 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 formerly decided with very little trouble and expense to the parties. But it is to be feared that the general remedy, which of late hath been principally applied to this inconvenience, (the erecting these new jurisdictions,) may itself be attended 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 againrevived, without burdening the freeholders with too frequent and tedious attendances; and at the same time removing the delays that have insensibly 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 populous county of Middlesex, which might serve as an example for others. For by statute 23 Geo. II., ch. 33, it is enacted:
1. That a special county court shall be held at least once in a month, in every hundred of the county of Middlesex, by the county clerk.
2.That twelve freeholders of that hundred, qualified 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.
3. 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.”
—3 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 of the laws of the king, for the reasons before given, viz., that the authority of the king was held in very little esteem; and, secondly, that 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.”
—2 Middle Ages, ch. 8, part 2, p. 465.
It is evident that it was in this way, by the free and concurrent judgments of juries, 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,”* when, as the Mirror says, “justice was so done, that every one so judged his neighbor, by such judgment as a man could not elsewhere receive in the like cases, until suchtimes 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 untrammelled 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.
[* ] Hallam says, “The county of Sussex contains sixty-five (‘hundreds’); that of Dorset forty-three; while Yorkshire has only twenty-six; and Lancashire but six.”—2 Middle Ages, 391.
[* ] Excepting also matters pertaining to the collection of the revenue, which were determined in the king’s court of exchequer. But even in this court it was the law “that none be amerced but by his peers.”—Mirror of Justices, 49.
[† ] “For the English laws, although not written, may, as it should seem, and that without any absurdity, be termed laws, (since this itself is law—that which pleases the prince has the force of law,) I mean those laws which it is evident were promulgated by the advice of the nobles and the authority of the prince, concerning doubts to be settled in their assembly. For if from the mere want of writing only, they should not be considered laws, then, unquestionably, writing would seem to confer more authority upon laws themselves, than either the equity of the persons constituting, or the reason of those framing them.”—Glanville’s Preface, p. 38. (Glanville was chief justice of Henry II., 1180.) 2 Turner’s History of the Anglo-Saxons, 280.
[‡ ] Mackintosh’s History of England, ch. 3. Lardner’s Cabinet Cyclopædia, 266.
[* ] If the laws of the king were received as authoritative by the juries, what occasion was there for his appointing special commissioners for the trial of offences, without the intervention of a jury, as he frequently did, in manifest and acknowledged violation of Magna Carta, and “the law of the land?” These appointments were undoubtedly made for no other reason than that the juries were not sufficiently subservient, but judged according to their own notions of right, instead of the will of the king—whether the latter were expressed in his statutes, or by his judges.
[† ] Of course, Mr. Reeve means to be understood that, in the hundred court, and court-leet, the jurors were the judges, as he declares them to have been in the county court; otherwise the “bailiff” or “steward” must have been judge.
[* ] The jurors were sometimes called “assessors,” because they assessed, or determined the amount of fines and amercements to be imposed.
[* ] “The barons of the Hundred” were the freeholders. Hallam says: “The word baro, originally meaning only a man, was of very large significance, and is not unfrequently applied to common freeholders, as in the phrase court-baron.”—3 Middle Ages, 14-15.
Blackstone says: “The court-baron * * is a court of common law, and it is the court of the barons, by which name the freeholders were sometimes anciently called; for that it is held before the freeholders who owe suit and service to the manor.”—3 Blackstone, 33.
[* ] 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.
[* ] Stuart says:
“The courts, or civil arrangements, which were modelled in Germany, preserved the independence of the people; and having followed the Saxons into England, and continuing their importance, they supported the envied liberty we boast of. * *
“As a chieftain led 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 in 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 intrusted 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.* They bound 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 shyre mote, 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 offences; 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 eorldorman, 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 a share of the territory he governed, or was entitled to a proportion of 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 on 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 occasion 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 eorldormen, related 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.*
“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 tenures, and the high employments they sustained, called them often from the management of their counties. The progress, too, of commerce, giving an intricacy to cases, and swelling the civil code, added to the difficulty of their office, and made them averse to its duties. Sheriffs, therefore, or deputies, 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 ceasing to prevail, and the civil being separated from the ecclesiastical power, they became the sole and proper officers for 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 an appeal to it.
“So gradually were these arrangements established, and so naturally did the varying circumstances in the situation of the Germans and Anglo-Saxons direct those successive improvements which the preservation of order, and the advantage 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, and 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, p. 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, p. 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 necessitous with 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 judgment of my peers.’ Of this institution, so wisely calculated for the preservation of liberty, all our historians have pronounced the eulogium.”—Ditto, p. 262-3.
“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 manors and towns in the kingdom; wherein 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 his 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 plaints or actions thither from all the inferior jurisdictions; upon these accounts (among others) it has happened that these petty tribunals have fallen into decay, and almost into oblivion; whether for the better or the worse may be 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,* ) 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.”—3 Blackstone, 30 to 32.
“The court-baron is a court incident to every manor in the kingdom, to be holden by the steuard 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 freeholders were sometimes anciently called; for that it is held by the freeholders 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, viz., the freeholders court, was composed of the lord’s tenants, who were the pares (equals) of each other, and were bound by their feudal tenure to assist their lord in the dispensation of domestic justice. This was formerly held every three weeks; and its 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 plea 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 fierding courts, so called because four were instituted within every superior district or hundred.”—3 Blackstone, 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 point of territory it is of greater jurisdiction. This is said by Sir Edward Coke to have been derived out of the county court for the ease of the people, that they might have justice done to them at their own doors, without any charge or loss of time; but its institution was probably coeval with that of hundreds themselves, which were formerly observed to have been introduced, though not invented, by Alfred, being derived from the polity of the ancient Germans. The centeni, 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. Cæsar speaks positively of the judicial power exercised in their hundred courts and courts-baron. ‘Princeps regiorum atque pagorum’ (which we may fairly construe the lords of hundreds and manors) ‘inter suos jus dicunt, controversias que minuunt.’ (The chiefs of the country and the villages declare the law among them, and abate controversies.) And Tacitus, who had examined their constitution still more attentively, informs us not only of the authority of the lords, but that of the centeni, the hundreders, or jury, who were taken out of the common freeholders, and had themselves a share in the determination. ‘Eliguntur in conciliis et principes, qui jura per pagos vicosque reddunt, centeni singulis, ex plebe comites concilium simul et auctoritas adsunt.’ (The princes are chosen in the assemblies, who administer the laws throughout the towns and villages, and with each one are associated an hundred companions, taken from the people, for purposes both of counsel and authority.) This hundred court was denominated hæreda 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.”—3 Blackstone, 34, 35.
“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 Gloucester, (6 Edward I., ch. 8,) 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 justicies, which is a writ empowering the sheriff, for the sake of despatch, to do the same justice in his county court as might otherwise be had at Westminster. The freeholders of the county court are the real judges in this court, and the 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 hundred courts and courts-baron, and as the same writ of false judgment may be had in nature of a writ of error, this has occasioned the same disuse of bringing actions therein.”—3 Blackstone, 36, 37.
“Upon the whole, we cannot but admire the wise economy and admirable provision of our ancestors in settling the distribution of justice in a method so well calculated for cheapness, expedition, and case. 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.”—3 Blackstone, 59.
[* ] “It was the freemen 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 relation to property had invested the German freemen with land or territory.”
[* ] It would be wholly erroneous, I think, to infer from this statement of Stuart, that either the “priests, princes, earls, or eorldormen” exercised 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 representation 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, their 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.”—3 Henry’s History of Great Britain, 348.
This view is corroborated by Tyrrell’s Introduction to the History of England, p. 83-84, and by Spence’s Origin of the Laws and Political Institutions of Modern Europe, p. 447, and the note on the same page. Also by a law of Canute to this effect, In every county let there be twice a year an assembly, whereat the bishop and the earl shall be present, the one to instruct the people in divine, the other in human, laws.—Wilkins, p. 136.
[* ] There was no distinction between the civil and criminal courts, as to the rights or powers of juries.
[* ] 1 Blackstone, 63-67.