r had any constitutional authority to infringe, by legislation, any
essential principle of the common law in the selection of jurors. All
such legislation is as much unconstitutional and void, as though it
abolished the trial by jury altogether. In reality it does abolish it.

What, then, are the _essential principles_ of the common law,
controlling the selection of jurors?

They are two.

1. That _all_ the freemen, or adult male members of the state, shall be
eligible as jurors.[80]

Any legislation which requires the selection of jurors to be made from a
less number of freemen than the whole, makes the jury selected an
illegal one.

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jurors, the jury no longer represent "the country," but only a part of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[81] 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. If it
meant anything more, it was probably contrary to the common law, and
therefore void.

2. Since Magna Carta, we have evidence showing quite conclusively that
all freemen, above the age of twenty-one years, were eligible as jurors.

The _Mirror of Justices_, (written within a century after Magna Carta,)
in the section "_Of Judges_"--that is, _jurors_--says:

"All those who are not forbidden by law may be judges (jurors). To
women it is forbidden by law that they be judges; and thence it is,
that feme coverts are exempted to do suit in inferior courts. On the
other part, a villein cannot be a judge, by reason of the two
estates, which are repugnants; persons attainted of false judgments
cannot be judges, nor infants, nor any under the age of twenty-o