If a part only of the freemen, or members of the state, are
eligible as jurors, the jury no longer represent "the country,"
but only a part of "the country."
If the selection of jurors can be restricted to any less number
of freemen than the whole, it can be restricted to a very small
proportion of the whole; and thus the government be taken out of
the hands of " the country," or the whole people, and be thrown
into the hands of a few.
That, at common law, the whole body of freemen were eligible as
jurors, is sufficiently proved, not only by the reason of the
thing, but by the following evidence:
1. Everybody must be presumed eligible, until the contrary
be shown. We have no evidence, that I am aware of, of a
prior date to Magna Carta, to disprove that all freemen were
eligible as jurors, unless it be the law of Ethelred, which
requires that they be elderly [3] men. Since no specific age
is given, it is probable, I think, that this statute meant
nothing more than that they be more than twenty-one years
old.
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