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SECTION II
The Ancient Common Law Juries were mere Courts of Conscience
http://oll.libertyfund.org/titles/spooner-an-essay-on-the-trial-by-jury-1852
Page 57
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There is no evidence whatever, so far as I am aware, that the juries had any lesspower in the courts held by the king’s justices, than in those held by sheriffs, bailiffs, and stewards; and there is no probability whatever that they had. All the difference between the former courts and the latter undoubtedly was, that, in the former, the juries had the benefit of the advice and assistance of the justices, which would, of course, be considered valuable in difficult cases, on account of the justices being regarded as more learned, not only in the laws of the king, but also in the common law, or “law of the land.”
The conclusion, therefore, I think, inevitably must be, that neither the laws of the king, nor the instructions of his justices, had any authority over jurors beyond what the latter saw fit to accord to them. And this view is confirmed by this remark of Hallam, the truth of which all will acknowledge:
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It is evident that it was in this way, by the free and concurrent judgments of juries, approving and enforcing certain laws and rules of conduct, corresponding to their notions of right and justice,that the laws and customs, which, for the most part, made up the common law, and were called, at that day, “the good laws, and good customs,” and “the law of the land,” were established. How otherwise could they ever have become established, as Blackstone says they were, “by long and immemorial usage, and by their universal reception throughout the kingdom,”*when, as the Mirror says, “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?”
The fact that, in that dark age, so many of the principles of natural equity, as those then embraced in the Common Law, should have been so uniformly recognized and enforced by juries, as to have become established by general consent as “the law of the land;” and the further fact that this “law of the land” was held so sacred that even the king could not lawfully infringe or alter it, but was required to swear to maintain it, are beautiful and impressive illustrations of the truth that men’s minds, even in the comparative infancy of other knowledge, have clear and coincident ideas of the elementary principles, and the paramount obligation, of justice. The same facts also prove that the common mind, and the general, or, perhaps, rather, the universal conscience, as developed in the untrammelled judgments of juries, may be safely relied upon for the preservation of individual rights in civil society; and that there is no necessity or excuse for that deluge of arbitrary legislation, with which the present age is overwhelmed, under the pretext that unless laws be made,the law will not be known; a pretext, by the way, almost universally used for overturning, instead of establishing, the principles of justice.
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