Note 123 — [pg 249]No. XXIII.

Selden waz forced to confess the jure consulti and ætate superiores, so often mentioned in the Saxon laws, az composing the homage or jury of twelv, to hav been cheef men both for experience and knowlege. To such as stumble at this conceet, as he expresses it, he remarks that the work of jurors requires them to be cheef men, az they judge of matter of fact; (a reezon drawn from the modern notions of jurymen's province.) And he adds, the jurors, who were co-assessors, with the bishop or sheriff in the court, were seeted in the most eminent place, and might hav held it to this day, az they do in Sweden, had the cheef men still holden the service. But the great became negligent of such public duties, and left the business to thoze of a meener condition, who would not or durst not take the bench; and therefore took their seets on the floor—(took separate seets.) He says further, that the Danes, on their settlement in England, would not associate with men of this condition; so that a compromise took place between Alfred, the Saxon king, and Gunthrune, the Dane, by which it waz decreed, that a lord or baron should be tried by twelv lords, and one of inferior rank, by eleven of his equals and one lord. This waz in the case of homicide only; tho afterwards the law might extend to other cases and civil suits. By hiz own account of the matter, this writer supposes the trial by twelv waz originally a trial by the cheef men, (thanes lahmen) and the idea of equality waz never suggested in the practice till the ninth or tenth century. But juries existed az courts for centuries before; and the word peers iz acknowleged to hav had its origin on the continent, where it signified the lords or members of the high court instituted by Charlemagne. In modern use, trial by peers iz trial by equals generally; for men are mostly become freemen and landholders; but this waz not the primitiv practice; nor was equality the basis of the institution. Even if we suppose the word peer to hav signified equal, as uzed originally on the continent, it extended no privilege on that account to the body of the nations where it waz used; for it ment only the kings equals, hiz comites, hiz dukes, erls and barons, among whom he waz merely primus inter pares. In England Bracton, who wrote under Henry III, declares the king waz considered in this light; and that the "erls and barons are his associates, who ought to bridle him, when the law does not."[f] The courts then which Charlemagne instituted in France and Germany, consisted merely of the kings peers or equals; and in theze countries, the courts remain mostly on the ancient footing; so that none but the nobility can be tried by their equals. In this sense of the word therefore juries were not used in England, till the compromise between Alfred and Gunthrune, about the year 900. Before that period, the jurors were not called or considered az equals; but they were thanes, jure consulti, lahmen and clergymen. A distinction afterwards took place, and lords were tried by their equals, and commoners by theirs.

[f] L. I. c. 16.