" Same, 148.
Palgrave also says, "Scotland, in like manner, had the laws of
Burlaw, or Birlaw, which were made and determined by the
neighbors, elected by common consent, in the Burlaw or Birlaw
courts, wherein knowledge was taken of complaints between
neighbor and neighbor, which men, so chosen, were judges and
arbitrators, and called Birlaw men." 1 Palgrave's Rise, &c;.,
p. 80.
But, in order to understand the common law trial by jury, as it
existed prior to Magna Carta, and as it, was guaranteed. by that
instrument, it is perhaps indispensable to understand more fully
the nature of the courts in which juries sat, and the extent of
the powers exercised by juries in those courts. I therefore give
in a note extended extracts, on these points, from Stuart on the
Constitution of England, and from Blackstone's Commentaries.
[20]
That all these courts were mere courts of conscience, in which
the juries were sole judges, administering justice according to
their own ideas of it, is not only shown by the extracts already
given, but is explicitly acknowledged in the following one, in
which the modern "courts of conscience" are compared with the
ancient hundred and county courts, and the preference given to
the latter, on the ground that the duties of the jurors in the
one case, and of the commissioners in the other, are the same,
and that the consciences of a jury are a safer and purer
tribunal than the consciences of individuals specially appointed,
and holding permanent offices.
Pages:
151
152
153
154
155
156
157
158
159
160
161
162
163
164
165
166
167
168
169
170
171
172
173
174
175