On further examination of this subject, I am led to subjoin the
following remarks, which are supported by the indisputable authority of
Glanville and Bracton.
I hav before suggested that the Saxons, prior to the conquest, conducted
most of their important affairs in the county or sheriffs court, where
all the free tenants were bound to attend. Theze free tenants consisted
of the lesser barons, the knights and fokemen, or foccage tenants who
had freehold estates. Theze freeholders, were, by the nature of their
estates, the _pares curtis_; they were the proper and sole _judges_ of
all causes triable at the county court, which included almost all civil
actions, and they were denominated in Saxon, _lahmen_, lawmen. The
county court, thus composed of all the freeholders in the shire, waz a
tribunal of great consequence, and inferior only to the witena-gemote,
or national assembly. The Latin riters called theze freemen _pares
curtis_ and _sectatores_, _peers of court_ and _suitors_. _Curtis_ iz a
Saxon word latinized,[140] like _warrantizo murdrum_, and hundreds of
other law terms; and there iz little dout that _pares_ iz a word of
similar origin.
[140] _Curtis_, _court_ and the Spanish _Cortez_ are all the
same word.
But what places the point I would establish, beyond controversy, iz, the
_pares curtis_ were in fact of different ranks. The knights or lesser
barons, az well az the common foccage tenants, were included in the term
_pares curtis_; for they were bound to do suit and service in the court
of the lord paramount. Another fact, iz of equal weight in the argument:
Theze _pares_, in the county court, tried all real actions between the
nobility. In the cause of Odo, Bishop of Bayeux, and archbishop
Lanfranc, in the reign of William the conqueror, the king directed
_totum Comitatum considere_. Many similar instances might be cited, were
it necessary. Theze noblemen were tried by the _pares curtis_, the peers
of the county court; but who ever said they were tried by their
_equals_?
The Norman princes attempted to discountenance theze shire motes of the
Saxons, and substitute the trial of facts by twelv _juratores_, men
sworn to speek the truth. In the reign of Henry II, the trial by jurors
had become common, if not general. Questions of _seisin_ were tried by
twelv common freeholders; but questions of _right_ were tried by twelv
knights; the sheriff summoning _four_ knights who elected the _twelv_.
I would here remark that the principal original reezon for summoning
freeholders _of the vicinage_, waz that of their supposed personal
knowlege of the fact in dispute. The _jurors_ were properly the
_witnesses_. This iz evident from circumstances and from the positiv
testimony of the erly law-riters. The first mention of a proper jury, in
any public act, iz in the constitutions of Clarendon, 1164, where the
sheriff iz directed, _quòd faciat jurare duodecim legales homines de
vicineto, seu de villa, quòd inde veritatem secundum conscientiam suam
manifestabunt_. It iz said in old writers that the jury _must speek the
truth, if they know it_. If the twelv men first summoned knew the truth,
they were compelled to declare it, under the penalty of perjury. If some
knew the facts and others did not, the latter were dismissed and others
summoned, till twelv were found who knew the facts, ether by what they
had seen and heerd themselves, or from such testimony of their fathers
and others, az gained full credit.
Without attending to juries in this light, the laws respecting them
appeer beyond measure absurd and tyrannical. Their being _sworn to speek
the truth_, would be absurd on any other ground; for had they judged of
facts on _testimony_, they would hav been sworn to declare _their
opinion_, and not the _truth_. Their _verdict, vere dictum_, derives its
name and propriety from the same circumstance; and the present practice
of swearing them to "a tru verdict giv," when they judge of facts only
by the perhaps contradictory testimony of several witnesses, iz,
strictly speeking, absurd.
The keeping juries, without meet, drink or fire, can be accounted for
only on the same idea; it waz a method to compel an agreement among men,
who were _acquainted with facts_, some of whom might at times be
obstinate, and not willing to disclose them. But how ridiculous would it
be to punish men for not agreeing _in opinion_, about what others
testified!
All this iz still more evident from the manner in which many questions
respecting real estates were ascertained and determined. It waz
customary for the jurors, after they were chosen, to go upon the land
to find the tru state of the fact in question, and then deliver their
verdict. Hence the propriety of the expression in closing issues; _and
this he prays may be enquired of by the country_.
I would observe further, that the reezon, why appeels from the verdict
of a jury were not allowed, iz simply this, that the jurors were
supposed to hav decided from their _own knowlege_. It waz certainly a
wise provision that the solemn declaration of men under oath, living in
the naborhood, and eye or eer witnesses of the recent transactions
between the parties, should not be overthrown by other testimony; for
all other evidence must hav necessarily been of an inferior nature. But
the reezon haz ceesed, and there iz now nothing more sacred in the
verdict of a jury, given on the testimony of others, than there iz in
the opinions of arbitrators, referees or auditors under oath. The laws
respecting juries are all founded on the idea that the men were
acquainted with the facts in dispute. Their verdict waz formerly a
_declaration of facts_; it iz now a mere _matter of opinion_. In short,
the original design of the institution iz totally changed, and mostly
superseded. Since juries rely on testimony, they need not be collected
from the _vicinage_; it iz even safer to hav men who are strangers to
both plaintiff and defendant. Jurors cannot be punished for _perjury_,
for how can a man _perjure_ himself in giving hiz _opinion_? They cannot
be starved to deth, nor carted about town for disagreement; for how iz
it possible for twelv men always to _think alike_, when they hav to form
their opinions on clashing testimonies? In short, juries do not now
answer one of the purposes for which they were at first instituted; and
however necessary they may be deemed to the preservation of civil
liberty, it appeers to me they are, in a great measure, useless.
I cannot leev this subject without remarking the influence of habit, in
maintaining _forms_, when the _substance_ no longer exists. This iz
neerly the case with the whole institution of juries; but particularly
in the manner of administering the oath to them. The practice of
swearing the foreman and the other jurors separately, still exists in
some of theze states, altho the reezon no longer remains. It originated
in the manner of delivering the verdict, which waz, for every juror
separately to answer the interrogatories of the judge. While this
practice remained, it waz very proper that eech juror should take a
separate oath; altho this formality iz dispensed with, in administering
the oath to witnesses, in modern courts; the words, "_you_ and _eech of
you_ swear," being substituted for a separate administration of the
oath.
No. XXIV.