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Among all the rights which men have gained, none is more interesting than the right of trial by jury. At present this is regarded as a safeguard against unfair laws, or against attempts to execute or imprison men because of prejudice. But the jury was not at first
right.” It was a new way of deciding whether a man was guilty or not, and for a long time people were afraid of it.
The old courts of the English had no jury. If a man was caught by some of the men who made up a court in the act of killing or stealing, then he was forthwith condemned and hanged. “He cannot gainsay it, so let him be hanged,” was the rule. Failing this, the accused man might try to prove his innocence by ordeal or in some kinds of cases by battle. When these went out of use, trial by jury came in. This arose as follows: When the king had a controversy about land or other matter he could not be expected to go into wager of battle. He used the highly sensible plan of having the best and oldest men of the neighborhood called together to tell what they knew. They might be asked what land the king had, or who was suspected of murder or crime. This was called an
inquest,” and we have a survival of it in the "coroner's inquest,” an inquiry into the cause of some sudden or violent death. As the king's court came to offer to people more and more widely the opportunity to bring their cases before the king's judges, they allowed other persons as well as the king to use the same test. The old way of settling who owned a piece of land was often by a challenge to fight. Under this new plan a man who was challenged might get the case transferred to the king's court; and twelve men from the neighborhood—knights, if it was about so important
a matter as ownership of land, or ordinary freemen if it was about a less important issue—would be called upon to say which had the better right. The twelve men were not, like a modern jury, supposed to hear witnesses. They were rather chosen as the men that would know most about the case already. In those days, just as now in country districts, neighbors knew best whether a piece of ground had always belonged to a certain farm, or whether this cow belongs to A or to B. This use of a jury was what is called a civil as contrasted with a criminal procedure. Such a jury was a sort of umpire or referee.
In criminal trials the use of a jury came in more slowly. The king or sheriff might, as we have seen, call an inquest to learn who, if any one, was suspected of stealing. If twelve men said that John Doe was suspected, then John Doe must stand trial. But the trial at first would be by the old test. Doe must try the ordeal of fire or water. Unless he was caught in the act, his neighbors would not dare to hang him on suspicion; they left it to God to show whether he was guilty or innocent. But suppose Doe were willing to leave it to his neighbors to say whether he were guilty or not. Then it was thought fair to take him at his word. Either the jury which first charged him with being a suspicious character, or a new twelve called in to give an independent opinion, might say whether he was guilty. The clergy were in 1215 forbidden to take any part in the old superstitious ordeals. Hence this jury plan was really the only one left except trial by battle, and the courts favored the plan of trial by jury. Still they did not dare to condemn a man by a jury unless he consented to this way of trial. To take away a man's life without his having a chance to
appeal to God was too much of a responsibility. Hence a man was asked to consent to the trial by jury and they could not try him without his consent.
This belief that a man could not be tried by a jury unless he consented might seem to leave an easy way of escape for wrongdoers, or even for an innocent man who feared the prejudice of his neighbors. But in order to avoid this very thing the law adopted a rather stupid and cruel scheme to keep up the fiction that a man must consent to trial. If a man would not consent he might be starved, or he might have weights piled upon his naked chest until he yielded or died. It is a painful instance of how long a barbarous custom may survive that one man in America was pressed to death in this way. It was fitting that the crime of which he was accused was witchcraft, for this showed that old superstitions and old legal customs are both very persistent.
Political liberty means having a share in govern- 5. Political ment. In a small town this may take the form of a liberty general town meeting where the voters decide directly on what they will expend for roads, schools, and other objects. Greek cities managed their own affairs in this way and it was thought a city ought not to be larger than could be governed by such a meeting. But the modern method is usually by choosing “representatives” to make laws and to perform other duties.
We now believe that political liberty, or self-government, is important for two reasons: first, as being the surest guarantee of the civil liberties already described ; second, as being in itself a power which gives dignity and worth to men and trains them to responsibility.
Who had a share in the national government at the
beginning? As we have already seen, it was first of all the king and the leading warriors, although the king employed also a number of churchmen to be his advisers and helpers in administering justice and keeping accounts. The great multitude of the men of the kingdom, to say nothing of the women, had no share whatever in the national government, except as servants or officers of the king. The king, with his council of chief men, “magnates as they were sometimes called, was the authority. The sheriff was appointed as the king's servant to keep order and collect taxes. The judges were the king's servants to collect his fines and hang those who disturbed his peace. The chancellor of the exchequer was his treasurer and bookkeeper; but none of these had any authority of his own.
The first great enlargement in the government we have already hinted at in Chapter V. The king summoned burgesses of the towns and knights of the shires to meet him. At first, he had no intention of giving them a share in governing. He got them together merely to tax them. Parliament was not anything that the people wanted. It was forced upon the people by the king. The clergy who were at first called to sit in Parliament managed to evade the duty and to sit by themselves and vote their supplies independently. Then men of high rank, the large landholders, tried to avoid going and preferred to pay a fine rather than to become a knight and so be liable for duty. In order to get these men to attend, the king's writs which summoned representatives of the shires demanded “belted knights,” and a statute was passed that the representatives must be “gentlemen born,” which implies that the “gentlemen ” were more than willing to allow their inferiors all the “honor" of attending the
nation's assembly. In the boroughs men bribed the sheriff to let them off. In short, as Professor Jenks puts the matter,
“ The counties hated it because they had to pay the wages of their members. The boroughs hated it because (in England at least) the parliamentary boroughs (those which were summoned to send members to Parliament) paid a higher scale of taxation than their humbler sisters. And all hated it because a Parliament invariably meant taxation.”
But by and by it was discovered that to grant money gave a good chance to petition for redress of wrong or for privileges. It also in time gave a chance to get favors for the towns which were represented. And when at times it came about that there were rivals for the throne, then Parliament sometimes found that it had real power in aiding one rather than another. In these ways the House of Commons came to take the lead which at first the greater barons had held, and to exercise more and more control over the king.
It was significant, however, that when the Parliament came to have real power the people of social rank became anxious to attend themselves, and proceeded to limit the persons who should have any choice in electing them. A law was passed limiting the right to vote to those “ freeholders” (a certain class of landowners) who owned land renting for forty shillings or more. As this would be the rental for eighty acres it would include only a small part of the people; but this law remained unchanged for four hundred years in England. In the eighteenth century there were only about 160,000 voters in a population of 8,000,000. This would be about one in ten of the grown men, or less than one in twenty men and women. Until 1832, then, the part