This practice of sending the king's judges into the counties
to preside at jury trials, was introduced by the Norman kings
Under the Saxons it was not so. No officer of the king was
allowed to preside at a jury trial; but only magistrates chosen
by the people.[5]
But the following chapter of John's charter, which immediately
succeeds the one just quoted, and refers to the same suits,
affords very strong, not to say conclusive, proof, that juries
judged of the law in civil suits that is, made the law, so far
as their deciding according to their own notions of justice could
make the law.
Chap. 23. "And if, on the county day, the aforesaid assizes
cannot be taken, so many knights and freeholders shall remain, of
those who shall have been present on said day, as that the
judgments may be rendered by them, whether the business be more
or less."
The meaning of this chapter is, that so many of the civil
suits, as could not be tried on the day when the king's justices
were present, should be tried afterwards, by the four knights
before mentioned, and the freeholders, that is, the jury. It must
be admitted, of course, that the juries, in these cases, judged
the matters of law, as well as fact, unless it be presumed that
the knights dictated the law to the jury na thing of which there
is no evidence at all.
As a final proof on this point, there is a statute enacted
seventy years after Magna Carta, which, although it is contrary
to the common law, and therefore void, is nevertheless good
evidence, inasmuch as it contains an acknowledgment, on the part
of the king himself, that juries had a right to judge of the
whole matter, law and fact, in civil suits. The provision is
this:
"It is ordained, that the justices assigned to take the assizes,
shall not compel the jurors to say precisely whether it be
disseisin, or not, so that they do show the truth of the deed,
and seek aid of the justices. But if they will, of their own
accord, say that it is disseisin, or not, their verdict shall be
admitted at their own peril." 13 Edward I., st. 1, ch. 3, sec.
2. (1285.)
Public-domain text, read in full here on John Shaqi.
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