[118] L L Ethel. c. 4.
[119] We find by ancient records, that the clergy, before the conquest, were sometimes summoned az jurors or judges in the temporal courts.[d] But the thanes were the most usual judges in the courts baron. The proper Saxon name of this court waz halimate or halmote, hallmeeting; "Omnis causa terminetur vel hundredo, vel comitatu, vel halimote, socam habentiam, vel dominorum curia."[e] And in W. Thorn, Anno 1176, the judges of this court are expressly said to be thanes, "thanenses, qui in Halimoto suo, in Thaneto, omnia sua judicia exerceri," (debent.) Selden, chap. 47, mentions a law of Henry I, which recites a custom of that time, by which "the bishops and erls, with other the cheef men of the county, were present in the county court az assistants in directory of judgement." Nothing can be more explicit. And altho Selden, in a passage hereafter quoted, mentions a compromise between Gunthrune, the Dane, and the Saxon king, that men of a rank inferior to lords should be tried by their equals, yet this inferior rank could extend only to freemen; for others were never admitted upon juries.
[d] See Selden, tit Sax. bishops.
[e] L. L. Hen. I. cap. 10.
[120] "And the sheriffs and bailiffs caused the free tenants of their bailiwicks to meet at the counties and hundreds, at which justice waz so done, that every one so judged hiz nabor by such judgement az a man could not elsewhere receev in the like cases, until such times az the customs of the relm were put in writing, and certainly established."—— Mirror. chap 1. sect. 3.
[121] Fleta. lib. I. c. 47.
[122] Laghman, to this day, iz the name of a judge or magistrate, both in Sweden and Iceland. In theze countries it retains its primitiv and tru English meening.—Mallets North. Antiq. Vol. I.
[123] Selden waz forced to confess the jure consulti and ætate superiores, so often mentioned in the Saxon laws, az composing the homage or jury of twelv, to hav been cheef men both for experience and knowlege. To such as stumble at this conceet, as he expresses it, he remarks that the work of jurors requires them to be cheef men, az they judge of matter of fact; (a reezon drawn from the modern notions of jurymen's province.) And he adds, the jurors, who were co-assessors, with the bishop or sheriff in the court, were seeted in the most eminent place, and might hav held it to this day, az they do in Sweden, had the cheef men still holden the service. But the great became negligent of such public duties, and left the business to thoze of a meener condition, who would not or durst not take the bench; and therefore took their seets on the floor—(took separate seets.) He says further, that the Danes, on their settlement in England, would not associate with men of this condition; so that a compromise took place between Alfred, the Saxon king, and Gunthrune, the Dane, by which it waz decreed, that a lord or baron should be tried by twelv lords, and one of inferior rank, by eleven of his equals and one lord. This waz in the case of homicide only; tho afterwards the law might extend to other cases and civil suits. By hiz own account of the matter, this writer supposes the trial by twelv waz originally a trial by the cheef men, (thanes lahmen) and the idea of equality waz never suggested in the practice till the ninth or tenth century. But juries existed az courts for centuries before; and the word peers iz acknowleged to hav had its origin on the continent, where it signified the lords or members of the high court instituted by Charlemagne. In modern use, trial by peers iz trial by equals generally; for men are mostly become freemen and landholders; but this waz not the primitiv practice; nor was equality the basis of the institution. Even if we suppose the word peer to hav signified equal, as uzed originally on the continent, it extended no privilege on that account to the body of the nations where it waz used; for it ment only the kings equals, hiz comites, hiz dukes, erls and barons, among whom he waz merely primus inter pares. In England Bracton, who wrote under Henry III, declares the king waz considered in this light; and that the "erls and barons are his associates, who ought to bridle him, when the law does not."[f] The courts then which Charlemagne instituted in France and Germany, consisted merely of the kings peers or equals; and in theze countries, the courts remain mostly on the ancient footing; so that none but the nobility can be tried by their equals. In this sense of the word therefore juries were not used in England, till the compromise between Alfred and Gunthrune, about the year 900. Before that period, the jurors were not called or considered az equals; but they were thanes, jure consulti, lahmen and clergymen. A distinction afterwards took place, and lords were tried by their equals, and commoners by theirs.
[f] L. I. c. 16.
[124] "The division of the county waz done by freemen, who are the sole judges thereof."[g] Selden, Matthew, Paris, and others, testify that the folk-mote, peeple's meeting or county court, waz a county parliament, invested with legislativ or discretionary powers in county matters. In theze small districts, they appeer to hav been competent to decide all controversies, and make all necessary local regulations. The legislativ, judicial and executiv powers, both civil and ecclesiastical, were originally blended in the same council; the witena-gemote had the powers of a legislature, of a court of law, and of a court of equity over the whole kingdom, in all matters of great and general concern. But this court waz composed of lords, bishops, and majores natu or sapientes, men respected for their age and lerning, who were of the rank of freemen. All the freemen were bound also to do suit in the lords court, and to attend the folk-mote on the sheriffs summons; but twelv were usually selected to sit az judges in common cases.