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PolWritV1_651-710.indd 693 2/21/12 12:13 PM [46} THEOPHRASTUS A Short History of the Trial by Jury WORCESTER, MASSACHUSETTS, 1787 "Remind the peo ple of their greatest privilege. " Chatham's Speech This essay on the trial by jury and the dangers of excluding citizens from jury lists was published in the Worcester Magazine during the second week of October, q87. "The most usual method of trial among the Saxons, was by juries, as at this day, that is , by twelve of the pares curia. The invention of these is attributed by the English lawyers to Alfred, and greatly do they exult over the laws of other countries, in the excellency of this method; but had they been acquainted with the ancient laws of the continent, they would have found the trial by pares common to all the northern nations, though since wore out by the introduction of the civil lawnot so common indeed any where else as in England, where every age has gained ground, and wore out the other. Alfred's merit was therefore in fixing the number, and determining the quality of jurors, rather than in the invention." Sullivan's lectures, p. 25 r By this as well as by other learned and judicious writers, we are informed, that the trial by jury is older than the British constitution itself; that it existed among all the northern nations, until the tyranny of the Roman empire had subverted it, by establishing the civil law; that it is considered as the only bulwark of the freedom of the people of England; and also that much has been done to give a permanent qualification to jurors, in order to prevent their being made the tools of tyranny, rather than the guardians of liberty. The qualification of jurors, was expressed in Magna Charta in these words, "liberas et legales homines, " good and lawful freemen. What good and lawful freemen were, was settled by a number of PolWritV1_651-710.indd 694 2/21/12 12:13 PM [ 694} WORCESTER, MASSACHUSETTS, q87 subsequent statutes; those who had been stigmatized, or whipt upon lawful trial, or outlawed by lawful process, were incapable at common law to serve as jurors. By a statute of the r3th of Edward the first, the age of seventy years excused. By the same statute, none were to serve unless they could dispend twenty shillings a year; but as money grew worse, the qualification was altered to keep up the dignity of the order, but was not carried so high as to deprive those who in its origin would have had it from the privilege and honour of serving. A statute made in the reign of Elizabeth, declared that the juror must have an income annually of four pounds a year, from his own freehold estate; a variety of statutes were made restoring the institution, when time or accident had altered it from its ancient standing; and finally, in the reign of George the second, the qualification of jurors was fixed at a freehold estate of twenty pounds a year, over and above the rent reserved; from that time money has remained nearly the same, and no alteration has been necessary to be done, in order to keep jurors upon their ancient constitutional footing. Thus, amidst all the revolutions which have happened in the empire of Britain, the trial by jury, according to ancient method, has been handed down entire; indeed, as it is coeval with their freedom, it cannot be survived by their liberty. The institution was brought into this country by the first settlers, who claimed all the rights of Englishmen; in the year r64 I they established county courts, and made provision for a trial by jury. From that time to the year 1759 the inhabitants in town meeting, holding a certain quantity of property, chose jurors of men of like conditions with themselves. By the charter granted the province in r692, every person seized in his own right of a freehold estate of the yearly income of forty shillings, or possessed of personal estate of the value of sixty pounds sterling, was capable of being elected a representative, and of voting in town meeting for members of the General Court. By a law made in I 694 jurors were to have the same quantity of estate as voters for representatives. In the year 1759, an act was passed, providing that the selectmen in each town, sometime before the month of December in that year...

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