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.
To suppose that the people were bound to obey, and juries to
enforce, laws, many of which were unwritten, none of which they
could read, and the larger part of which (those written in Latin)
they could not translate, or understand when they heard them
read, is equivalent to supposing the nation sunk in the most
degrading slavery, instead of enjoying a liberty of their own
choosing.
Their knowledge of the laws passed by the king was, of course,
derived only from oral information; and the good laws,"as some of
them were called, in contradistinction to others those which
the people at large esteemed to be good laws were doubtless
enforced by the juries, and the others, as a general thing,
disregarded. [15]
That such was the nature of judicial proceedings, and of the
power of juries, up to the time of Magna Carta, is further shown
by the following authorities.
"The sheriff's and bailiffs caused the free tenants of their
bailiwics to meet at their counties and hundreds; at which
justice was so done, that every one so judged his neighbor by
such judgment as a man could not elsewhere receive in the like
cases, until such times as the customs of the realm were put in
writing, and certainly published.
"And although a freeman commonly was not to serve (as a juror or
judge) without his assent, nevertheless it was assented unto that
free tenants should meet together in the counties and hundreds,
and lords courts, if they were not specially exempted to do such
suits, and there judged their neighbors." Mirror of Justices,
p. 7, 8.
Gilbert, in his treatise on the Constitution of England, says:
Public-domain text, read in full here on John Shaqi.
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