[13] See Blackstone'a Law Tracts, page 294, Oxford Edition

[14] These Articles of the Charter are given in Blackstone's collection of Charters, and are also printed with the statutes of the Realm. Also in Wilkins' Laws of the Anglo- Saxons, p. 350.

[15] Lingard says, " The words, ' We will not destroy him nor will we go upon him, nor will we send upon him,' have been very differently expounded by different legal authorities. Their real meaning may be learned from John himself, who the next year promised by his letters patent,... nec super eos per vim vel per arma ibimus, nisi per legem regni nostri, vel per judicium parium suorum in curia nostra, (nor will we go upon them by force or by arms, unless by the law of our kingdom, or the judgment of their peers in our court.) Pat. 16 Johan, apud Drad. 11, app. no. 124.

He had hitherto been in the habit of going with an armed force, or sending an armed force on the lands, and against the castles, of all whom he knew or suspected to be his secret enemies, without observing any form of law." 3 Lingard, 47 note.

[16] "Judgment, judicium. * * The sentence of the law, pronounced by the court, upon the matter contained in the record." 8 Blackstone, 895. Jacob's Law Dictionary. . Tomlin's do.

"Judgment is the decision or sentence of the law, given by a court of justice or other competent tribunal, as the result of the proceedings instituted therein, for the redress of an injury." Bouvier's Law Dict.

"Judgment, judicium. * * Sentence of a judge against a criminal. * * Determination, decision in general." Bailey's Dict.

"Judgment. * * In a legal sense, a sentence or decision pronounced by authority of a king, or other power, either by their own mouth, or by that of their judges andofficers, whom they appoint, to administer justice in their stead." Chambers' Dict.

"Judgment. * * In law, the sentence or doom pronounced in any case, civil orcriminal, by the judge or court by which it is tried." Webster's Dict.

Sometimes the punishment itself is called judicium, judgment; or, rather, it was at the time of Magna Carta. For example, in a statute passed fifty-one years after Magna Carta, it was said that a baker, for default in the weight of his bread, " debeat amerciari vel subire judicium pillorie;" that is, ought to be amerced, or suffer the punishment, or judgment, of the pillory. Also that a brewer, for "selling ale contrary to the assize," "debeat amerciari, vel pati judicium tumbrelli "; that is, ought to be amerced, or suffer the punishment, or judgment, of the tumbrel. 51 Henry 3, St. 6. (1266.)

Also the "Statutes of uncertain date," (but supposed to be prior to Edward III., or 1326,) provide, in chapters 6, 7, and 10, for "judgment of the pillory." See 1 Rughead's Statutes, 187, 188. 1 Statutes of the Realm, 203.

Blackstone, in his chapter "Of Judgment, and its Consequences," says, "Judgment (unless any matter be offered in arrest thereof) follows upon conviction f being the pronouncing of that punishment which is expressly ordained by law." Blackstone's Analysis of the Laws of England, Book 4, Ch. 29, Sec. 1. Blackstone's Law Tracts, 126.

Coke says, "Judicium .. the judgment is the guide and direction of the execution." 3 Inst. 210.

[17] This precedent from Germany is good authority, because the trial by jury was in use, in the northern nations of Europe generally, long before Magna Carta, and probably from time immemorial; and the Saxons and Normans were familiar with it before they settled in England.

[18] Beneficium was the legal name of an estate held by a feudal tenure. See Spelman's Glossary.

[19]] Contenement of a freeman was the means of living in the condition of a freeman.

[20] Waynage was a villein's plough-tackle and carts.

[21] Tomlin says, "The ancient practice was, when any such fine was imposed, to inquire by a jury quantum inde regi dare valeat per annum, salva sustentatione sua et uxoris et libe- rorum suorum, (how much is he able to give to the king per annum, saving his own maintenance, and that of his wife and children). And since the disuse of such inquest, it is never usual to assess a larger fine than a man is able to pay, without touching the implements of his livelihood; but to inflict corporal punishment, or a limited imprisonment, instead of such a fine as might amount to imprisonment for life. And this is the reason why fines in the king's courts are frequently denominated ransoms, because the penalty must otherwise fall upon a man's person, unless it be redeemed or ransomed by a pecuniary fine." Tomlin's Law Dict., word Fine.

[22] Because juries were to fix the sentence, it must not be supposed that the king was obliged to carry the sentence into execution; but only that he could not go beyond the sentence. He might pardon, or he might acquit on grounds of law, not withstanding the sentence; but he could not punish beyond the extent of the sentence. Magna Carta does not prescribe that the king shall punish according to the sentence of the peers; but only that he shall not punish "unless according to" that sentence. He may acquit or pardon, notwithstanding their sentence or judgment; but he cannot punish, except according to their judgment.

[23] The trial by battle was one in which the accused challenged his accuser to single combat, and staked tbe question of his guilt or innocence on the result of the duel. This trial was introduced into England by the Normans, within one hundred and fifty years before Magna Carta. It was not very often resorted to even by the Normans themselves; probably never by the Anglo-Saxons, unless in their controversies with the Normans. It was strongly discouraged by some of the Norman princes, particularly by Henry II., by whom the trial by jury was especially favored. It is probable that the trial by battle, so far as it prevailed at all in England, was rather tolerated as a matter of chivalry, than authorized as a matter of law. At any rate, it is not likely that it was included in the "legem terrae" of Magna Carta, although such duels have occasionally occurred since that time, and have, by some, been supposed to be lawful. I apprehend that nothing can be properly said to be a part of lex terrae, unless it can be shown either to have been of Saxon origin, or to have been recognized by Magna Carta.

The trial by ordeal was of various kinds. In one ordeal the accused was required to take hot iron in his hand; in another to walk blindfold among red-hot ploughshares; in another to thrust his arm into boiling water; in another to be thrown, with his hands and feet bound, into cold water; in another to swallow the morsel of execration; in the confidence that his guilt or innocence would be miraculously made known. This mode of trial was nearly extinct at the time of Magna Carta, and it is not likely that it was included in "legem terrae," as that term is used in that instrument. This idea is corroborated by the fact that the trial by ordeal was specially prohibited only four years after Magna Carta, "by act of Parliament in 3 Henry III., according to Sir Edward Coke, or rather by an order of the king in council." 3 Blacks,one 345, note.

I apprehend that this trial was never forced upon accused persons, but was only allowed to them, as an appeal to God, from the judgment of a jury. [24]

The trial by compurgators was one in which, if the accused could bring twelve of his neighbors, who would make oath that they believed him innocent, he was held to be so. It is probable that this trial was really the trial by jury, or was allowed as an appeal from a jury. It is wholly improbable that two diferent modes of trial, so nearly resembling each other as this and the trial by jury do, should prevail at the same time, and among a rude people, whose judicial proceedings would naturally be of the simplest kind. But if this trial really were any other than the trial by jury, it must have been nearly or quite extinct at the time of Magna Carta; and there is no probability that it was included in "legem terrae."

[24] Hallam says, "It appears as if the ordeal were permitted to persons already convicted by the verdict of a jury." 2 Middle Ages, 446, note.

[25] Coke attempts to show that there is a distinction between amercements and fines admitting that amercements must be fixed by one's peers, but, claiming that, fines may be fixed by the government. (2 Inst. 27, 8 Coke's Reports 38) But there seems to have been no ground whatever for supposing that any such distinction existed at the time of Magna Carta. If there were any such distinction in the time of Coke, it had doubtless grown up within the four centuries that had elapsed since Magna Carta, and is to be set down as one of the numberless inventions of government for getting rid of the restraints of Magna Carta, and for taking men out of the protection of their peers, and subjecting them to such punishments as the government chooses to inflict.

The first statute of Westminster, passed sixty years after Magna Carta, treats the fine and amercement as synonymous, as follows.

"Forasmuch as the common fine and amercement of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriffs and baretors in the shires, * * it is provided, and the king wills, that frown henceforth such sums shall be assessed before the justices in Eyre, afore their departure, by the oath of knights and other honest men," &c. 3 Edward I., Ch. 18. (1275)

And in many other statutes passed after Magna Carta, the terms fine and amercement seem to be used indifferently, in prescribing the punishments for offences. As late as 1461, (246 years after Magna Carta,) the statute 1 Edward IV., Ch 2, speaks of "fines., ransoms, and amerciaments" as being levied upon criminals, as if they were the common punishments of offences.

St. 2 and 3 Philip and Mary, Ch 8, uses the terms, "fines, forfeitures, and amerciaments" five times. (1555)

St. 5 Elizabeth, Ch. 13, Sec. 10, uses the terms "fines, forfeitures, and amerciaments."

That amercements were fines, or pecuniary punishments, inflicted for offences, is proved by the following statutes, (all supposed to have been passed within one hundred and fifteen years after Magna Cart,) which speak of amercements as a species of "judgment," or punishment, and as being inflicted for the same offences as other "judgments."

Thus one statute declares that a baker, for default in the weight of his bread, "ought to be amerced, or suffer the judgment of the pillory; and that a brewer, for "selling ale contrary to the assize," "ought to be amerced, or suffer the judgment of the tumbrel," — 51 Henry III., St. 6. (1266)

Among the "Statutes of Uncertain Date," but supposed to be prior to Edward III., (1326), are the following:

Chap. 6 provides that "if a brewer break the assize, (fixing the price of ale,) the first, second, and third time, he shall be amerced; but the fourth time he shall suffer judgment of the pillory without redemption."

Chap. 7 provides that "a butcher that selleth swine's flesh measeled, or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth the same unto Christians, after he shall be convict thereof, for the first time he shall be grievously amerced; the second time he shall suffer judgment of the pillory; and the third time he shall be imprisoned and make fine; and the fourth time he shall forswear the town."

Chap. 10, a statute against forestalling, provides that, "He that is convict thereof, the first time shall be amerced, and shall lose the thing so bought, and that according to the custom of the town; he that is convicted the second time shall have judgment of the pillory; at the third time he shall be imprisoned and make fine; the fourth time he shall abjure the town. And this judgment shall be given upon all manner of forestallers, and likewise upon them that have given them counsel, help, or favor." 1 Ruffheads Statutes, 187, 188. 1 Statutes of the Realm, 203.

[26] 1 Hume, Appendix, l.

[27] Blackstone says, "Our ancient Saxon laws nominally punished theft with death, if above the value of twelve pence; but the criminal was permitted to redeem his life by a pecuniary ransom, as among their ancestors, the Germans, by a stated number of cattle. Bit in the ninth year of Henry the First (1109,) this power of redemption was taken away, and all persons guilty of larceny above the value off twelve pence were directed to be hanged, which law continues in force to this day." 4 Blackstone, 238

I give this statement of Blackstone, because the latter clause may seem to militate with the idea, which the former clause corroborates, viz., that at the time of Magna Carta, fines were the usual punishment of offenses. But I think there is no probability that a law so unreasonable in itself, (unreasonable even after making all allowance for the difference in the value of money,) and so contrary to immemorial custom, could and did obtain any general or speedy acquiescence among a people who cared little for the authority of kings.

Maddox, writing of the period from William the Conqueror to John, says: "The amercement in criminal and common pleas, which were wont to be imposed during this first period and afterwards, were of so many several sorts, that it is not easy to place them under distinct heads. Let them, for methods' sake, be reduced to the heads following: Amercements for or by reason of murders and manslaughters, for misdemeanors, for disseisins, for recreancy, for breach of assize, for defaults, for non-appearance, for false judgment, and for not making suit, or hue and cry. To them may be added miscellaneous amercements, for trespasses of divers kinds." 1 Maddox' History of the Exchequer, 542.

[28] Coke, in his exposition of the words legem terrae, gives quite in detail the principles of the common law governing arrests, and takes it for granted that the words "nisi per legem terre" are applicable to arrests, as well as to the indictment, &c. 2 inst., 51, 52.

[29] I cite the above extract from Mr. Hallam solely for the sake of his authority for rendering the word vel by and; and not by any means for the purpose of indorsing the opinion he suggests, that legem terrae authorized "judgments by default or demurrer,*' without the intervention of a jury. He seems to imagine that lex terrae, the common law, at the time of Magna Carta, included everything, even to the practice of courts, that is, at this day, called by the name of Common Law; whereas much of what is now called Common Law has grown up, by usurpation, since the time of Magna Carta, in palpable violation of the authority of that charter. He says, "Certainly there are many legal procedures, besides trial by jury, through which a party's goods or person may be taken." Of course there are now many such ways, in which a party's goods or person are taken, besides by the judgment of a jury; but the question is, whether such takings are not in violation of Magna Carta.

He seems to think that, in cases of "judgment by default or demurrer," there is no need of a jury, and thence to infer that legem terrae may not have required a jury in those cases. But this opinion is founded on the erroneous idea that juries are required only for determining contested facts, and not for judging of the law. In case of default, the plaintif must present a prima facie case before he is entitled to a judgment; and Magna Carta, (supposing it to require a jury trial in civil cases, as Mr. Hallam assumes that it does,) as much requires that this prima facie case, both law and fact, be made out to the satisfaction of a jury, as it does that a contested case shall be.

As for a demurrer, the jury must try a demurrer (having the advice and assistance of the court, of course) as much as any other matter of law arising in a case.

Mr. Hallam evidently thinks there is no use for a jury, except where there is a "trial" meaning thereby a contest on matters of fact. His language is, that "there are many legal procedures, besides trial by jury, through which a party's goods or person may be taken." Now Magna Carta says nothing of trial by jury; but only of the judgment, or sentence, of a jury. It is only by inference that we come to the conclusion that there must be a trial by jury. Since the jury alone can give the judgment, or sentence, we infer that they must try the case; because otherwise they would be incompetent, and would have no moral right, to give judgment. They must, therefore, examine the grounds, (both of law and fact,) or rather try the grounds, of every action whatsoever, whether it be decided on "default, demurrer," or otherwise, and render their judgment, or sentence, thereon, before any judgment can be a legal one, on which "to take a party's goods or person." In short, the principle of Magna Carta is, that no judgment can be valid against a party's goods or person, (not even a judgment for costs,) except a judgment rendered by a jury. Of course a jury must try every question, both of law and fact, that is involved in the rendering of that judgment. They are to have the assistance and advice of the judges, so far as they desire them; but the judgment itself must be theirs, and not the judgment of the court.

As to "process of attachment for contempt," it is of course lawful for a judge, in his character of a peace officer, to issue a warrant for the arrest of a man guilty of a contempt, as he would for the arrest of any other offender, and hold him to bail, (or, in default of bail, commit him to prison,) to answer for his offence before a jury. Or he may order him into custody without a warrant when the offence is committed in the judge's presence.

But there is no reason why a judge should have the power of punishing, for contempt, any more than for any other offence. And it is one of the most dangerous powers a judge can have, because it gives him absolute authority in a court of justice, and enables him to tyrannize as he pleases over parties, counsel, witnesses, and jurors. If a judge have power to punish for contempt, and to determine for himself what is a contempt, the whole administration of justice (or injustice, if he choose to make it so) is in his hands. And all the rights of jurors, witnesses, counsel, and parties, are held subject to his pleasure, and can be exercised only agreeably to his will. He can of course control the entire proceedings in, and consequently the decision of, every cause, by restraining and punishing every one, whether party, counsel, witness, or juror, who presumes to offer anything contrary to his pleasure.

This arbitrary power, which has been usurped and exercised by judges to punish for contempt, has undoubtedly had much to do in subduing counsel into those servile, obsequious, and cowardly habits, which so universally prevail among them, and which have not only cost so many clients their rights, but have also cost the people so many of their liberties.

If any summary, punishment for contempt be ever necessary, (as it probably is not,) beyond exclusion for the time being from the court-room, (which should be done, not as a punishment, but for self-protection, and the preservation of order,) the judgment for it should be given by the jury, (where the trial is before a jury,) and not by the court, for the jury, and not the court, are really the judges. For the same reason, exclusion from the court-room should be ordered only by the jury, in cases when the trial is before a jury, because they, being the real judges and triers of the cause, are entitled, if anybody, to the control of the court-room. In appeal courts, where no juries sit, it may be necessary not as a punishment, but for self-protection, and the maintenance of order that the court should exercise the power of excluding a person, for the time being, from the court-room; but there is no reason why they should proceed to sentence him as a criminal, without his being tried by a jury.

If the people wish to have their rights respected and protected in courts of justice, it is manifestly of the last importance that they jealously guard the liberty of parties, counsel, witnesses, and jurors, against all arbitrary power on the part of the court.

Certainly Mr. Hallam may very well say that "one may doubt whether these (the several eases he has mentioned) were in contemplation of the framers of Magna Carta " that is, as exceptions to the rule requiring that all judgmcnts, that are to be enforced "against a party's goods or person,", be rendered by a jury.

Again, Mr. Hallam says, if the word vel, be rendered by and,, "the meaning will be, that no person shall be disseized, &c., except upon a lawful cause of action.", This is true; but it does not follow that any cause of action, founded on statute only,, is therefore a "lawful, cause of action," within the meaning of legem terrae, , or the Common Law., Within the meaning of the legem terrae, of Magna Carta, nothing but a common law, cause of action is a "lawful", one.

CHAPTER III. ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS

If any evidence, extraneous to the history and language of Magna Carta, were needed. to prove that, by that chapter which guaranties the trial by jury, all was meant that has now been ascribed to it, and that the legislation of the king was to be of no authority with the jury beyond what they chose to allow to it, and that the juries were to limit the punishments to be inflicted, we should find that evidence in various sources, such as the laws, customs, and characters of their ancestors on the continent, and of the northern Europeans generally; in the legislation and customs that immediately succeeded Magna Carta; in the oaths that have at different times been administered to jurors, &c;., &c;. This evidence can be exhibited here but partially. To give it all would require too much space and labor

SECTION I

Weakness of the Regal Authority.

Hughes, in his preface to his translation of Horne's "Mirror of Justices," (a book written in the time of Edward I, 1272 to 1307,) giving a concise view of the laws of England generally, says:

"Although in the Saxon's time I find the usual words of the acts then to have been edictum, (edict,) constitutio, (statute,) little mention being made of the commons, yet I further find that, tum demum Leges vim et vigorem habuerunt, cum fuerunt non modo institutae sed firmatae approbatione communitatis." (The laws had force and vigor only when they were not only enacted, but confirmed by the approval of the community.)

The Mirror of Justices itself also says, (ch. 1, sec. 3,) in speaking "Of the first Constitutions of the Ancient King."

"Many ordinances were made by many kings, until the time of the king that now is (Edward I.); the which ordinances were abused, or not used by many, nor very current, because they were not put in writing, and certainly published." Mirror of Justices, p. 6.

Hallam says:

"The Franks, Lombards, and Saxons seem alike to have been jealous of judicial authority; and averse to surrendering what concerned every man's private right, out of the hands of his neighbors and equals." 1 Middle Ages, 271.

The "judicial authority," here spoken of, was the authority of the kings, (who at that time united the office of both legislators and judges,), and not of a separate department of government, called the judiciary, like what has existed in more modern times. [1]

Hume says:

"The government of the Germans, and that of all the northern nations, who established themselves on the ruins of Rome, was always extremely free; and those fierce people, accustomed to independence and inured to arms, were more guided by persuasion, than authority, in the submission which they paid to their princes. The military despotism, which had taken place n the Roman empire, and which, previously to the irruption of those conquerors, had sunk the genius of men, and destroyed every noble principle of science and virtue, was unable to resist the vigorous efforts of a free people, and Europe, as from a new epoch, rekindled her ancient spirit, and shook off the base servitude to arbitrary will and authority under which she had so long labored. The free constitutions then established, however impaired by the encroachments of succeeding princes, still preserve an air of independence and legal administration, which distinguished the European nations; and if that part of the globe maintain sentiments of liberty, honor, equity, and valor, superior to the rest of mankind, it owes these advantages chiefly to the seeds implanted by those generous barbarians.

"The Saxons, who subdued Britain, as they enjoyed great liberty in their own country, obstinately retained that invaluable possession in their new settlement; and they imported into this island the same principles of independence, which they had inherited from their ancestors. The chieftains, ( for such they were, more than kings or princes,) who commanded them in those military expeditions, still possessed a very limited authority; and as the Saxons exterminated, rather than subdued the ancient inhabitants, they were, indeed, transplanted into a new territory, but preserved unaltered all their civil and military insfitutions. The language was pure Saxon; even the names of places, which often remain while the tongue entirely changes, were almost all affixed by the conquerors; the manners and customs were wholly German; and the same picture of a fierce and bold liberty, which is drawn by the masterly pen of Tacitus, will suit those founders of the English government. The king, so far from being invested with arbitrary power, was only considered as the first among the citizens; his authority depended more on his personal qualities than on his station; he was even so far on a level with the people, that a stated price was fixed for his head, and a legal fine was levied upon his murderer, which though proportionate to his station, and superior to that paid for the life of a subject, was a sensible mark of his subordination to the community." 1 Hume, Appendix, l.

Stuart says:

"The Saxons brought along with them into Britain their own customs, language, and civil institutions. Free in Germany, they renounced not their independence, when they had conquered. Proud from victory, and with their swords in their hands, would they surrender their liberties to a private man? Would temporary laders, limited in their powers, and unprovided in resources, ever think to usurp an authority over warriors, who considered themselves as their equals, were impatient of control, and attached with devoted zeal to their privileges? Or, would they find leisure to form resolutions, or opportunities to put them in practice, amidst the tumult and confusion of those fierce and bloody wars, which their nations first waged with the Britons, and then engaged in among themselves? Sufficiently flattered in leading the armies of their countrymen, the ambition of commanders could as little suggest such designs, as the liberty of the people could submit to them. The conquerors of Britain retained their independence; and this island saw itself again in that free state in which the Roman arms had discovered it.

"The same firmness of character, and generosity of manners, which, in general, distinguished the Germans, were possessed in an eminent degree by the Saxons; and while we endeavor to unfold their political institutions, we must perpetually turn our observation to that masterly picture in which the Roman historian has described these nations. In the woods of Germany shall we find the principles which directed the state of land, in the different kingdoms of Europe; and there shall we find the foundation of those ranks of men, and of those civil arrangements, which the barbarians everywhere established; and which the English alone have had the good fortune, or the spirit, to preserve." Stuart on the Constitution of england, p. 59 - 61.

"Kings they (the Germans) respected as the first magistrates of the state; but the authority possessed by them was narrow and limited." Ditto, p. 134.

"Did he, (the king,) at any time, relax his activity and martial ardor, did he employ his abilities to the prejudice of his nation, or fancy he was superior to the laws; the same power which raised him to honor, humbled and degraded him. The customs and councils of his country pointed out to him his duty; and if he infringed on the former, or disobeyed the latter, a fierce people set aside his authority.

"His long hair was the only ornament he affected, and to be foremost to attack an enemy was his chief distinction. Engaged in every hazardous expedition, he was a stranger to repose; and, rivalled by half the heroes of his tribe, he could obtain little power. Anxious and watchful for the public interest, he felt every moment his dependence, and gave proofs of his suhmission.

"He attended the general assembly of his nation, and was allowed the privilege to harangue it first; but the arts of persuasion, though known and respected by a rude people, were unequally opposed to the prejudices and passions of men." Ditto, p. 135 - 6.

"The authority of a Saxon mnarch was not more considerable. The Saxons submitted not to the arbitrary rule of princes. They administered an oath to their sovereigns, which bound them to aeknowledge the laws, and to defend the rights of the church and people; and if they forgot this obligation, they forfeited their office. In both countries, a price was affixed on kings, a fine expiated their murder, as well as that of the meanest citizen; and the smallest violation of ancient usage,or the least step towards tyranny, was always dangerous, and often fatal to them." Ditto, p. 189-40.

"They were not allowed to impose taxes on the kingdom." Ditto, p. 146.

"Like the German monarchs, they deliberated in the general assembly of the nation; but their legislative authority was not much respected; and their assent was considered in no better light than as a form. This, however, was their chief prerogative; and they employed it to acquire an ascendant in the state. To art and insinuation they turned, as their only resource, and flattered a people whom they could not awe; but address, and the abilities to persuade, were a weak compensation for the absence of real power.

"They declared war, it is said, and made peace. In both cases, however, they acted as the instruments of the state, and put in execution the resolutions which its councils had decreed. If, indeed, an enemy had invaded the kingdoms, and its glory and its safety were concerned, the great lords took the field at the call of their sovereign. But had a sovereign declared war against a neighboring state, without requiring their advice, or if he meant to revenge by arms an insult offered to him by a subject, a haughty and independent nobility refused their assistance. These they considered as the quarrels of the king, and not of the nation; and in all such emergencies he could only be assisted by his retainers and dependents." Ditto, p. 147 8.

"Nor must we imagine that the Saxon, any more than the German monarchs, succeeded each other in a lineal descent, [2] or that they disposed of the crown at their pleasure. In both countries, the free election of the people filled the throne; and their choice was the only rule by which princes reigned. The succession, accordingly, of their kings was often broken and interrupted, and their depositions were frequent and groundless. The will of a prince whom they had long respected, and the favor they naturally transferred to his descendant, made them often advance him to the royal dignity; but the crown of his ancestor he cnsidered as the gift of the people, and neither expected nor claimed it as a right." Ditto, p. 151 3.

In Germany "It was the business of the great to command in war, and in peace they distributed justice.

"The princes in Germany were earls in England. The great contended in both countries in the number of their retainers, and in that splendor and magnificence which are so alluring to a rude people; and though they joined to set bounds to regal power, they were often animated against each other with the fiercest hatred. To a proud and impatient nobility it seemed little and unsuiting to give or accept compositions for the injuries they committed or received; and their vassals adopting their resentment and passions, war and bloodshed alone could terminate their quarrels. What necessarily resulted from their situation in society, was continued as a privilege; and the great, in both countries, made war, of their private authority, on their enemies. The Saxon earls even carried their arms against their sovereigns; and, surrounded with retainers, or secure in fortresses and castles, they despised their resentment, and defied their power.

"The judges of the people, they presided in both countries in courts of law. [3] The particular districts over which they exerted their authority were marked out in Germany by the council of the state; and in England their jurisdiction extended over the fiefs and other territories they possessed. All causes, both civil and criminal, were tried before them; and they judged, except in cases of the utmost importance, without appeal. They were even allowed to grant pardon to criminals, and to correct by their clemency the rigors of justice. Nor did the sovereign exercise any authority in their lands. In these his officers formed no courts, and his writ was disregarded.

"They had officers, as well as the king, who collected their revenues, and added to their greatness; and the inhabitants of their lands they distinguished by the name of subjects.

"But to attend the general assembly of their nation was the chief prerogative of the German and Saxon princes; and as they consulted the interest of their country, and eliberated concerning matters of state, so in the king's court, of which also they were members, they assisted to pronounce judgment in the complaints and appeals which were lodged in it." Ditto, p. 158 to 165.

Henry says:

"Nothing can be more evident than this important truth; that our Anglo-Saxon kings were not absolute monarchs; but that their powers and prerogatives were limited by the laws and customs of the country. Our Saxon ancestors had been governed by limited monarchs in their native seats on the continent; and there is not the least appearance or probability that they relinquished their liberties, and submitted to absolute government in their new settlements in this island. It is not to be imagined that men, whose reigning passion was the love of liberty, would willingly resign it; and their new sovereigns, who had been their fellow-soldiers, had certainly no power to compel them to such a resignation." 3 Henry's History of Great Britain, 358.

Mackintosh says:"The Saxon chiefs, who were called. kings, originally acquired power by the same natural causes which have gradually, and everywhere, raised a few men above their fellows. They were, doubtless, more experienced, more skillful, more brave, or more beautiful, than those who followed them. * * A king was powerful in war by the lustre of his arms, and the obvious necessity of obedience. His influence in peace fluctuated with his personal character. In the progress of usage his power became more fixed and more limited. * * It would be very unreasonable to suppose that the northern Germans who had conquered England, had so far changed their characteristic habits from the age of Tacitus, that the victors became slaves, and that their generals were converted into tyrants." Mackintosh's Hist. of England, Ch. 2. 45 Lardner's Cab. Cyc., 73-4.

Rapin, in his discourse on the "Origin and Nature of the English Constitution," says:

"There are but two things the Saxons did not think proper to trust their kings with; for being of like passions with other men, they might very possibly abuse them; namely, the power of changing the laws enacted by consent of king and people; and the power of raising taxes at pleasure.From these two articles sprung numberless branches concerning the liberty and property of the subject, which the king cannot touch, without breaking the constitution, and they are the distinguishing character of the English monarchy. The prerogatives of the crown, and the rights and privileges of the people, flowing from the two fore-mentioned articles, are the ground of all the laws that from time to time have been made by unanimous consent of king and people. The English government consists in the strict union of the king's prerogatives with the people's liberties. * * But when kings arose, as some there were, that aimed at absolute power, by changing the old, and making new laws, at pleasure; by imposing illegal taxes on the people; this excellent government being, in a manner, dissolved by these destructive measures, confusion and civil wars ensued, which some very wrongfully ascribe to the fickle and restless temper of the English." Rapin's Preface to his History of England.

Hallam says that among the Saxons, "the royal authority was weak." 2 Middle Ages, 403.

But although the king himself had so little authority, that it cannot be supposed for a moment that his laws were regarded as imperative by the people, it has nevertheless been claimed, in modern times, by some who seem determined to find or make a precedent for the present legislative authority of parliament, that his laws were authoritative, when assented to by the Witena - gemote, or assembly of wise men that is, the bishops and barons. But this assembly evidently had no legislative power , whatever. The king would occasionally invite the bishops and barons to meet him for consultation on public affairs, simply as a council, and not as a legislative body. Such as saw fit to attend, did so. If they were agreed upon what ought to be done, the king would pass a law accordingly, and the barons and bishops would then return and inform the people orally what laws had been passed, and use their influence with them to induce them to conform to the law of the king, and the recommendation of the council. ' And the people no doubt were much more likely to accept a law of the king, if it had been approved by this council, than if it had not. But it was still only a law of the king, which they obeyed or disregarded according to their own notions of expediency. The numbers who usually attended this council were too small to admit of the supposition that they had any legislative authority whatever, to impose laws upon the people against their will.

Lingard says:

"It was necessary that the king should obtain the assent of these (the members o the Witena-gemotes) to all legislative enactments; because, without their acquiescence and support, it was impossible to carry them into execution. To many charters (laws) we have the signatures of the Witan. They seldom exceed thirty in number; they never amount to sixty." 1 Lingard; 486.

It is ridiculous to suppose that the assent of such an assembly gave any authority to the laws of the king, or had any influence in securing obedience to them, otherwise than by way of persuasion. If this body had had any real legislative authority, such as is accorded to legislative bodies of the present day, they would have made themselves at once the most conspicuous portion of the government, and would have left behind them abundant evidence of their power, instead of the evidence simply of their assent to a few laws passed by the king.

More than this. If this body had had any real legislative authority, they would have constituted an aristocracy, having, in conjunction with the king, absolute power over the people. Assembling voluntarily, merely on the invitation of the king; deputed by nobody but themselves; representing nobody but themselves; responsible to nobody but themselves; their legislative authority, if they had had any, would of necessity have made the government the government of an aristocracy merely, and the people slaves, of course. And this would necessarily have been the picture that history would have given us of the Anglo-Saxon government, and of Anglo-Saxon liberty.

The fact that the people had no representation in this assembly, and the further fact that, through their juries alone, they nevertheless maintained that noble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has constituted the greatest pride and glory of the nation to this day, prove that this assembly exercised no authority which juries of the people acknowledged, except at their own discretion. [4]

There is not a more palpable truth, in the history of the Anglo-Saxon government, than that stated in the Introduction to Gilbert's History of the Common Pleas, [5] viz.. "that the County aud Hundred Courts," (to which should have been added the other courts in which juries sat, the courts-baron and court-leet,) "in those times were the real and only Parliaments of the kingdom." And why were they the real and only parliaments of the kingdom? Solely because, as will be hereafter shown, the juries in those courts tried causes on their intrinsic merits, according to their own ideas of justice, irrespective of the laws agreed upon by kings, priests, and barons; and whatever principles they uniformly, or perhaps generally, enforced, and none others, became practically the law of the land as matter of course. [6]

Finally, on this point. Conclusive proof that the legislation of the king was of little or no authority, is found in the fact that the kings enacted so few laws. If their laws had been received as authoritative, in the manner that legislative enactments are at this day, they would have been making laws continually. Yet the codes of the most celebrated kings are very small, and were little more than compilations of immemorial customs. The code of Alfred would not fill twelve pages of the statute book of Massachusetts, and was little or nothing else than a compilation of the laws of Moses, and the Saxon customs, evidently collected from considerations of convenience, rather than enacted on the principle of authority. The code of Edward the Confessor would not fill twenty pages of the statute book of Massachusetts, and, says Blackstone, "seems to have been no more than a new edition, or fresh promulgation of Alfred's code, or dome-book, with such additions and improvements as the experience of a century and a half suggested." 1 Blackstone, 66. [7]

The Code of Wiliiam the Conqueror [8] would fill less than seven pages of the statute book of Massachusetts; and most of the laws contained in it are taken from the laws of the preceding kings, and especially of Edward the Confessor (whose laws William swore to observe); but few of his own being added.

The codes of the other Saxon and Norman kings were, as a general rule, less voluminous even than these that have been named; and probably did not exceed them in originality. [9] The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to mqintain their thrones, were obliged to bind themselves, to observe the ancient laws and customs, in other words; the "lex terrae," or "common law" of the kingdom. Even Magna Carta contains hardly anything other than this same "common law," with some new securities for its observance.

How is this abstinence from legislation, on the part of the ancient kings, to be accounted for, except on the supposition that the people would accept, and juries enforce, few or no new laws enacted by their kings? Plainly it can be accounted. for in no ether way. In fact, all history informs us that anciently the attempts of the kings to introduce or establish new laws, met with determined resistance from the people, and generally resulted in failure "Nolumus Leges Angliae mutari" (we will that the laws of England be not changed,) was a determined principle with the Anglo-Saxons, from which they seldom departed, up to the time of Magna Carta, and indeed until long after. [10]

SECTION II

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 these 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, 80.) 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. [11] 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 bailiff's, 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. [12] 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. [13] Of those that werewritten, few copies only were made, (printing being then unknown,) and not enough to supply a11, 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 thattime, 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. [14]. 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 beingeven 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. [15]

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 sheriff's 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 832.

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 nem-bas; 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.

Reeve says:

"The great court for civil business was the county court; held once every four weeks. Here the sheriff presided; but the suitors of the court, as they were called, that is, the freemen or landholders of the county, were the judges; and the sheriff was to execute the judgment.

"The hundred court was held before some bailiff; the leet before the lord of the manor's steward.[16]

"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. T.,

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 aud 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 kng'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' praed' 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 s1ieriff's; yet, by the old feudal constititions, 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 hy 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. 61- 2.

"It is a distinguishing feature of the feudal system, to make civil jurisdiction necessarily, and criminal jurisdiction ordinarily, coextensive 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 curiae, (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 Rxchequer, 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." Crabbe, 23.

The sheriff afterwards became the sole presiding officer of the county court.

Sir Thomas Smith, Secretary of State to queen Elizabeth, writing more than 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 twele 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." Tomline'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 judge, could not he 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 theland the jury are the 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 where 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 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 was to etermine, by writ of right, all controversies relating to the right of lands within the manor." 3 Stephens' Commentaries, 392 3. 3 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 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, [17] 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 challege; 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." Spence, 456.

Hale says:

"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 Angliae.

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.

Tyrre11 says:

"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 [18] 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 impaneled 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 impaneled 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, [19] 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 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 eld in the trading towns." Same, p. 335.

Also, "The same regulation, 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 Exhequer,) as well as into their anxiliary 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 Eng-1and, 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 curiae (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." Same, 148.

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. [20]

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.i * * * 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, ingeneral, 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 again revived, 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) shll 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, bailiff, 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,"- 1 Blackstone,63-67., 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 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 troth 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 III. 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) corroborate 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." 4 Blackstone, 302. 2 Turner's History of the Anglo-Saxons, 155 Wilkins' Laws of the Anglo-Saxons, 117. Spelman's Glossary, word Jurata.

Blackstone assumes that this was the oath of the grand jury 4 Blackstone, 302); but there was but one jury at the time this oath was ordained. The institution of two juries, grand and petit, 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, ch. 2.

By a law of Henry II., in 1164, it was directed that the sheriff "faciet jurare duodecim legales homines de vicineto seu de villa, quod inde veritatem secundum conscientiam suam manifestabunt," (shall make twelve, legal men from the neighborhood to swear that they will make known the truth according to their conscience.) Crabbe's History of the English Law, 119. 1 Reeves, 87. Wilkins, 321 323.

Glanville, who wrote within the half century previous to Magna Carta, says;

"Each of the knights summoned far this purpose (as jurors) ought to swear that he will neither utter that which is false, nor knowingly conceal the truth." Beames' Glanville, 65.

Reeve calls the trial by jury "the trial by twelve men sworn to speak the truth." 1 Reeve's 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." 3 Henry's Hist. 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." p. 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, p. 73.

In criminal trials, he says:

"The clerk giveth the juror an oath to go uprightly betwixt the prince and the prisoner." Ditto, p. 90. [24]

Hale 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." 2 Hale's History of the Common Law, 141.

It appears from Blackstone that, even at this day, neither in civil nor criminal cases, are jurors in England sworn to try causes according to law. He says tht 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." 3 Blackstone, 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 in 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, than by the will of any other body 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." 4 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 moral right 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 ft 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. [25]

Grand Jury. If jurors are bound to enforce all laws passed by the legislature, it is a very remarkable fact than 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 jurors; 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, as given in the essay on Grand Juries, written near two hundred 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, as 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 council, your fellows, and your own, you shall keep secret. You shall present no person for hatred or malice; neither shall you leave any one 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, p. 33 34.

On the obligations of this oath, the essay says:"If it be asked how, or in what manner, the (grand) juries 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, &c;., 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 there 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 judge's, knowledge. Neither can they, without breach of that oath, resign their consciences, or blindly submit to the dictates of others; and 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 else 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 magisterially impose their opinions upon the jury, and make them forsake the direct words of their oath, to pursue their glosses. The grand inquest 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 understandings suggest for the discovery of it, if it be commanded by the judges." Lord Somers' Essay on Grand Juries, p. 88.

What is here said so plainly and forcibly of the oath and obligations of grand juries, is equally applicable to the oath and obligations of petit juries. In both cases the simple oaths of the jurors, and not the instructions of the judges, nor the statutes of kings nor legislatures, are their legal guides to their duties. [26]

SECTION IV. 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-leet, 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 passed fifty-one years after Magna Carta, says that a baker, for default in the weight of his bread, "debeat amerciari vel subire judicium pilloae," that is, "ought to be amerced, or suffer the sentence of the pillory." And that a brewer, for "selling ale, contrary to the assize," "debeat amerciari, vel pati judicium tumbrelli;" that is, "ought to be amerced, or suffer judgment of the tumbrel." 51 Henry III., st. 6. (1266.)

If the king (the legislative power) had had authority to fix the punishments of these offences imperatively, he would naturally have said these offenders shall be amerced, and shall suffer judgment of the pillory and tumbrel, instead of thus simply expressing the opinion that they ought to be punished in that manner.

The statute of Westminster, passed sixty years after Magna Carta, provides that,"No city, borough, nor town, nor any man, be amerced, without reasonable cause, and according to the quantity of the trespass; that is to say, every freeman saving his freehold, a merchant saving his merchandise, a villein his waynage, and that by his or their peers." 3 Edward I., ch. 6. (1275.)

The same statute (ch. 18) provides further, that,"Forasmuch as the common fine and amercement of the whole county in Eyre of the justices for false judgments, or for other trespass, is unjustly assessed by sheriff's and baretors 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 baretors, which do not acquit the payers; it is provided, and the king wills, that from henceforth such sums shall be assessed before the justices in Eyre, afore their departure, by the oath of knights and other honest men, upon all such as ought to pay; and the justices shall cause the parcels to be put into their estreats, which shall be delivered up unto the exchequer, and not the whole sum." St. 3 Edward I., ch. 18, (1275.) [27]

The following statute, passed in 1341, one hundred and twenty-five years after Magna Carta, providing for the trial of peers of 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 teneiments, goods and cattels, asseized in the king's hands, and some put to death without judgment of their peers: It is accorded and assented, that no peer of the land, officer, nor other, because of his office, nor of things touching his office, nor by other cause, shall be brought in judgment to lose his temporalities, lands, tenements, goods and cattels, 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., st. 1, sec. 2.

Section 4, of 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 in 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, barons of exchequer; so always that they and all other ministers be put to answer to every complaint; and if default be found in any of the said ministers, by complaint or other manner, and of that attainted 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 said sovereign lord the king shall do (cause) to be pronounced and made execution without delay, according to the judgment (sentence) of the said peers in the Parliament."