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.