Cowel tels us, "the court baron iz more properly curia baronum, i. e. the court of freeholders, (for so barones does also signify) over whom the lord of the manor presides. In this court the freeholders are judges."[114]
Selden's authority confirms this fact. He says, "neether waz the bishops nor sheriffs work, in the folk-mote or county court, other than directory or declaratory; for the freemen were judges of the fact, and the other did but edocere jura populo."[115] Here a distinction iz cleerly made beetween the freemen and the populus; the freemen were the judges, and the bishop or sheriff edocuit jura, proclaimed the decision to the multitude. The freemen, or landholders, then were the peers of the court; they were not the equals of the multitude, for the populus, the laborers of all descriptions, were considered az belonging to an inferior class of men, and had no voice in the folk-mote.
To sum up the whole, we hav the authority of the correct and judicious Blackstone, who expressly asserts, book III. chapters IV and V, that in the court baron, the hundred court and county court, the freeholders or suitors are the judges, and the steward in the two former, and the sheriff in the latter, are the registrars or ministerial officers. Now it iz well known that before the conquest, theze included all the courts that were in the kingdom, except the witena-gemote, in which there waz nothing like a jury, separate from the members of that council. So that the freeholders or jurors were not only judges, but they were the sole judges in all the inferior courts in the kingdom; and of course there could be little or no distinction between law and fact. Nay, more, the suitors were the witnesses also; and the principal reezon for summoning freeholders of the vicinage waz originally this; it waz supposed they were acquainted with the facts in dispute. Hence laws were made to compel the jurors to tell the truth, if they knew the facts, which waz always supposed, till the contrary appeered. In theze courts small causes were decided; and the county court had cognizance of ecclesiastical causes, az well az civil, and often determined disputes between the nobles, about real estates of immense value.
But important matters were generally brought before the witena-gemote, or assembly composed of the king, bishops, erls and wise men. This waz a national council, which united in itself all powers, legislativ, judicial, civil and ecclesiastical, in law and equity. Such a thing az a jury waz never known in this supreme court. William the conqueror first separated the civil from the ecclesiastical authority, and substituted the aula regiæ, a high court, consisting of hiz cheef officers and barons, in place of the Saxon witena-gemote. This court waz the supreme judicature in the nation; a jury waz no part of it, and it followed the king wherever he went, till it waz fixed by Magna Charta in Westminster Hall. Afterwards, in the reigns of Henry III and Edward I, several courts were carved out of the Aula Regis; az the common pleas, the court of kings bench, the exchequer and chancery courts; and it does not appeer that a jury, distinct from the judges, formed any part of the important common law courts, till after this period. The distinction therefore between judges and jury, law and fact, seems not to hav been known, till the dissolution of the Aula Regis, at the cloze of the thirteenth century.
Let us enquire what kind of men theze freeholders were, who were summoned az jurors or judges at theze courts.
Lord Coke iz express, and quotes Glanvil and Bracton for authorities, that "in ancient times the jurors were twelv knights," (that iz, probably, persons holding land amounting to a knights see.)[116]
Henry III issued writs to the several counties to enquire into the liberties of hiz subjects, by twelv good and lawful knights.[117] The Saxon laws are more explicit. "Habeantur placita in singulis wapentachiis, ut exeantur duodecem thayni et præpositus cum eis, et jurent super sanetuarium, quod eis dabitur in manu, quod neminem innocentem velint accusare, vel noxium concelare."[118] Here the law of Ethelred iz explicit in ordaining a court of twelve thayni, thanes or barons, with their præpositus or president, who waz the officer of the hundred. Cowel remarks on this passage, "that this may seem to intend the number of judges, and not of the jury; but the jury themselves, in some cases, are judges, that iz, they are judges of the fact, and the judge iz bound to giv sentence according to their verdict." This writer here supposes the thayni to be really jurors and judges; but judges only of the fact. This iz the fundamental error of most lawyers who hav written on the subject; they take it for granted, that the distinction of law and fact waz coeval with the trial by twelv freeholders. Yet a single circumstance, mentioned by Cowel in the same page, with the passage quoted, might hav undeceeved him, which iz, that "trial by jury waz anciently called duodecem virale judicium," the judgement of twelv men. Their sentence or decision waz called a judgement; the distinction between the verdict of a jury, and the judgement of the court, waz unknown in the erly ages of the Saxons; nor can I find it mentioned, till after the conquest.
This, and similar passages, hav however occasioned much dispute among other English lawyers and antiquaries. They hav adopted the opinion, that a jury must consist of twelv equal commoners, and cannot explain what iz ment by summoning twelv thanes. "Brady and Hicks," says Stuart, "contended that theze thanes were not jurors, but judges or lawyers. Coke and Spelman were of a different opinion." The truth iz, they were both jurors and judges; and a knowlege of the tru primitiv sense of one little monosyllable in our language, would hav unravelled the whole mystery to theze learned enquirers.
The most usual word for jurors, in the Saxon laws, iz lahmen or lagemen; a word that haz puzzled the law writers, az it seems to meen something more than equals; and they hav no idea of any thing in a jury, but equality. Hicks supposed them to be judges, "duodeni jure consulti," men versed in law. Spelman rendered the word, legales homines, good and lawful men; very inadequate words indeed; but the error haz been copied times without number, and still prevails. Lahman iz literally a law man, man of the law, a judge. Law waz in a rude state, at that period; but the thanes were both lawyers and judges; jure consulti.[119] Professional distinctions could not be but little known, amidst an unlettered peeple, who had few positiv laws, and fewer records and precedents; and the lahmen, the seniores thani, or meliores viri, az they were called, were summoned at certain times to decide controversies, according to law, where a law waz provided; otherwise according to their discretion. The decisions of theze lahmen were held in esteem; many of them were preserved and handed down by tradition, and I hav no dout, theze, rather than statutes, gave rise to the general and particular customs, which are called the common law of England.[120]
Coke defines lahman to be one, "habens socam et sacam super homines suos;" that iz, liberty of holding a court over hiz tenants: Which explanation he quotes from Bracton. "Soke,(or soc) significat libertatem curiæ tenentium quam socam appellamus."[121]