560 lines
31 KiB
Markdown
560 lines
31 KiB
Markdown
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CHAPTER IV.
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THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS.
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The evidence already given in the preceding chapters proves that the
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rights and duties of jurors, in civil suits, were anciently the same as
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in criminal ones; that the laws of the king were of no obligation upon
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the consciences of the jurors, any further than the laws were seen by
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them to be just; that very few laws were enacted applicable to civil
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suits; that when a new law was enacted, the nature of it could have been
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known to the jurors only by report, and was very likely not to be known
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to them at all; that nearly all the law involved in civil suits was
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_unwritten_; that there was _usually_ no one in attendance upon juries
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who could possibly enlighten them, unless it were sheriffs, stewards,
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and bailiffs, who were unquestionably too ignorant and untrustworthy to
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instruct them authoritatively; that the jurors must therefore
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necessarily have judged for themselves of the whole case; and that, _as
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a general rule_, they could judge of it by no law but the law of nature,
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or the principles of justice as they existed in their own minds.
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The ancient oath of jurors in civil suits, viz., that "_they would make
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known the truth according to their consciences_," implies that the
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jurors were above the authority of all legislation. The modern oath, in
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England, viz., that they "_will well and truly try the issue between the
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parties, and a true verdict give, according to the evidence_," implies
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the same thing. If the laws of the king had been binding upon a jury,
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they would have been sworn to try the cases _according to law_, or
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according to the laws.
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The ancient writs, in civil suits, as given in Glanville, (within the
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half century before Magna Carta,) to wit, "Summon twelve free and legal
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men, (or sometimes twelve knights,) to be in court, _prepared upon their
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oaths to declare whether A or B have the greater right to the land in
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question_," indicate that the jurors judged of the whole matter on their
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consciences only.
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The language of Magna Carta, already discussed, establishes the same
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point; for, although some of the words, such as "outlawed," and
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"exiled," would apply only to criminal cases, nearly the whole chapter
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applies as well to civil as to criminal suits. For example, how could
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the payment of a debt ever be enforced against an unwilling debtor, if
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he could neither be "arrested, imprisoned, nor deprived of his
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freehold," and if the king could neither "proceed against him, nor send
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any one against him, by force or arms"? Yet Magna Carta as much forbids
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that any of these things shall be done against a debtor, as against a
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criminal, _except according to, or in execution of_, "_a judgment of his
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peers, or the law of the land_,"--a provision which, it has been shown,
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gave the jury the free and absolute right to give or withhold "judgment"
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according to their consciences, irrespective of all legislation.
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The following provisions, in the Magna Carta of John, illustrate the
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custom of referring the most important matters of a civil nature, even
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where the king was a party, to the determination of the peers, or of
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twelve men, acting by no rules but their own consciences. These examples
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at least show that there is nothing improbable or unnatural in the idea
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that juries should try all civil suits according to their own judgments,
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independently of all laws of the king.
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_Chap. 65._ "If we have disseized or dispossessed the Welsh of any
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lands, liberties, or other things, without the legal judgment of
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their peers, they shall be immediately restored to them. And if any
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dispute arises upon this head, the matter shall be determined in the
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Marches,[68] _by the judgment of their peers_," &c.
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_Chap. 68._ "We shall treat with Alexander, king of Scots, concerning
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the restoring of his sisters, and hostages, and rights and liberties,
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in the same form and manner as we shall do to the rest of our barons
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of England; unless by the engagements, which his father William, late
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king of Scots, hath entered into with us, it ought to be otherwise;
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_and this shall be left to the determination of his peers in our
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court_."
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_Chap. 56._ "All evil customs concerning forests, warrens, and
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foresters, warreners, sheriffs, and their officers, rivers and their
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keepers, shall forthwith be inquired into in each county, _by twelve
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knights of the same shire_, chosen by the most creditable persons in
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the same county, _and upon oath_; and within forty days after the
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said inquest, be utterly abolished, so as never to be restored."
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There is substantially the same reason why a jury _ought_ to judge of
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the justice of laws, and hold all unjust laws invalid, in civil suits,
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as in criminal ones. That reason is the necessity of guarding against
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the tyranny of the government. Nearly the same oppressions can be
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practised in civil suits as in criminal ones. For example, individuals
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may be deprived of their liberty, and robbed of their property, by
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judgments rendered in civil suits, as well as in criminal ones. If the
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laws of the king were imperative upon a jury in civil suits, the king
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might enact laws giving one man's property to another, or confiscating
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it to the king himself, and authorizing civil suits to obtain possession
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of it. Thus a man might be robbed of his property at the arbitrary
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pleasure of the king. In fact, all the property of the kingdom would be
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placed at the arbitrary disposal of the king, through the judgments of
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juries in civil suits, if the laws of the king were imperative upon a
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jury in such suits.[69]
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Furthermore, it would be absurd and inconsistent to make a jury
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paramount to legislation in _criminal_ suits, and subordinate to it in
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_civil_ suits; because an individual, by resisting the execution of a
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_civil_ judgment, founded upon an unjust law, could give rise to a
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_criminal_ suit, in which the jury would be bound to hold the same law
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invalid. So that, if an unjust law were binding upon a jury in _civil_
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suits, a defendant, by resisting the execution of the judgment, could,
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_in effect_, convert the civil action into a criminal one, in which the
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jury would be paramount to the same legislation, to which, in the
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_civil_ suit, they were subordinate. In other words, in the _criminal_
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suit, the jury would be obliged to justify the defendant in resisting a
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law, which, in the _civil_ suit, they had said he was bound to submit
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to.
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To make this point plain to the most common mind--suppose a law be
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enacted that the property of A shall be given to B. B brings a civil
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action to obtain possession of it. If the jury, in this _civil_ suit,
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are bound to hold the law obligatory, they render a judgment in favor of
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B, that he be put in possession of the property; _thereby declaring that
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A is bound to submit to a law depriving him of his property_. But when
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the execution of that judgment comes to be attempted--that is, when the
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sheriff comes to take the property for the purpose of delivering it to
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B--A acting, as he has a _natural_ right to do, in defence of his
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property, resists and kills the sheriff. He is thereupon indicted for
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murder. On this trial his plea is, that in killing the sheriff, he was
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simply exercising his _natural_ right of defending his property against
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an unjust law. The jury, not being bound, in a _criminal_ case, by the
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authority of an unjust law, judge the act on its merits, and acquit the
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defendant--thus declaring that he was _not_ bound to submit to the same
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law which the jury, in the _civil_ suit, had, by their judgment,
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declared that he _was_ bound to submit to. Here is a contradiction
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between the two judgments. In the _civil_ suit, the law is declared to
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be obligatory upon A; in the _criminal_ suit, the same law is declared
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to be of no obligation.
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It would be a solecism and absurdity in government to allow such
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consequences as these. Besides, it would be practically impossible to
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maintain government on such principles; for no government could enforce
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its _civil_ judgments, unless it could support them by _criminal_ ones,
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in case of resistance. A jury must therefore be paramount to legislation
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in both civil and criminal cases, or in neither. If they are paramount
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in neither, they are no protection to liberty. If they are paramount in
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both, then all legislation goes only for what it may chance to be worth
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in the estimation of a jury.
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Another reason why Magna Carta makes the discretion and consciences of
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juries paramount to all legislation in _civil_ suits, is, that if
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legislation were binding upon a jury, the jurors--(by reason of their
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being unable to read, as jurors in those days were, and also by reason
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of many of the statutes being unwritten, or at least not so many copies
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written as that juries could be supplied with them)--would have been
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necessitated--at least in those courts in which the king's justices
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sat--to take the word of those justices as to what the laws of the king
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really were. In other words, they would have been necessitated _to take
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the law from the court_, as jurors do now.
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Now there were two reasons why, as we may rationally suppose, the people
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did not wish juries to take their law from the king's judges. One was,
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that, at that day, the people probably had sense enough to see, (what
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we, at this day, have not sense enough to see, although we have the
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evidence of it every day before our eyes,) that those judges, being
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dependent upon the legislative power, (the king,) being appointed by it,
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paid by it, and removable by it at pleasure, would be mere tools of that
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power, and would hold all its legislation obligatory, whether it were
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just or unjust. This was one reason, doubtless, why Magna Carta made
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juries, in civil suits, paramount to all instructions of the king's
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judges. The reason was precisely the same as that for making them
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paramount to all instructions of judges in criminal suits, viz., that
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the people did not choose to subject their rights of property, and all
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other rights involved in civil suits, to the operation of such laws as
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the king might please to enact. It was seen that to allow the king's
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judges to dictate the law to the jury would be equivalent to making the
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legislation of the king imperative upon the jury.
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Another reason why the people did not wish juries, in civil suits, to
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take their law from the king's judges, doubtless was, that, knowing the
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dependence of the judges upon the king, and knowing that the king would,
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of course, tolerate no judges who were not subservient to his will, they
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necessarily inferred that the king's judges would be as corrupt, in the
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administration of justice, as was the king himself, or as he wished them
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to be. And how corrupt that was, may be inferred from the following
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historical facts.
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Hume says:
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"It appears that the ancient kings of England put themselves entirely
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upon the footing of the barbarous Eastern princes, whom no man must
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approach without a present, who sell all their good offices, and who
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intrude themselves into every business that they may have a pretence
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for extorting money. Even justice was avowedly bought and sold; the
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king's court itself, though the supreme judicature of the kingdom,
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was open to none that brought not presents to the king; the bribes
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given for expedition, delay, suspension, and doubtless for the
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perversion of justice, were entered in the public registers of the
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royal revenue, and remain as monuments of the perpetual iniquity and
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tyranny of the times. The barons of the exchequer, for instance, the
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first nobility of the kingdom, were not ashamed to insert, as an
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article in their records, that the county of Norfolk paid a sum that
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they might be fairly dealt with; the borough of Yarmouth, that the
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king's charters, which they have for their liberties, might not be
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violated; Richard, son of Gilbert, for the king's helping him to
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recover his debt from the Jews; * * Serlo, son of Terlavaston, that
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he might be permitted to make his defence, in case he were accused of
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a certain homicide; Walter de Burton, for free law, if accused of
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wounding another; Robert de Essart, for having an inquest to find
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whether Roger, the butcher, and Wace and Humphrey, accused him of
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robbery and theft out of envy and ill-will, or not; William Buhurst,
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for having an inquest to find whether he were accused of the death of
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one Godwin, out of ill-will, or for just cause. I have selected these
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few instances from a great number of the like kind, which Madox had
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selected from a still greater number, preserved in the ancient rolls
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of the exchequer.
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Sometimes a party litigant offered the king a certain portion, a
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half, a third, a fourth, payable out of the debts which he, as the
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executor of justice, should assist in recovering. Theophania de
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Westland agreed to pay the half of two hundred and twelve marks, that
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she might recover that sum against James de Fughleston; Solomon, the
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Jew, engaged to pay one mark out of every seven that he should
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recover against Hugh de la Hose; Nicholas Morrel promised to pay
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sixty pounds, that the Earl of Flanders might be distrained to pay
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him three hundred and forty-three pounds, which the earl had taken
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from him; and these sixty pounds were to be paid out of the first
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money that Nicholas should recover from the earl."--_Hume, Appendix
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2._
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"In the reign of Henry II., the best and most just of these (the
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Norman) princes, * * Peter, of Blois, a judicious and even elegant
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writer, of that age, gives a pathetic description of the _venality of
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justice_, and the oppressions of the poor, * * and he scruples not to
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complain to the king himself of these abuses. We may judge what the
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case would be under the government of worse princes."--_Hume,
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Appendix 2._
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Carte says:
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"The crown exercised in those days an exorbitant and inconvenient
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power, ordering the justices of the king's court, in suits about
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lands, to turn out, put, and keep in possession, which of the
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litigants they pleased; to send contradictory orders; and take large
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sums of money from each; to respite proceedings; to direct sentences;
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and the judges, acting by their commission, conceived themselves
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bound to observe such orders, to the great delay, interruption, and
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preventing of justice; at least, this was John's practice."--_Carte's
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History of England_, vol. 1, p. 832.
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Hallam says:
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"But of all the abuses that deformed the Anglo-Saxon government, none
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was so flagitious as the sale of judicial redress. The king, we are
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often told, is the fountain of justice; but in those ages it was one
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which gold alone could unseal. Men fined (paid fines) to have right
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done them; to sue in a certain court; to implead a certain person; to
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have restitution of land which they had recovered at law. From the
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sale of that justice which every citizen has a right to demand, it
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was an easy transition to withhold or deny it. Fines were received
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for the king's help against the adverse suitor; that is, for
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perversion of justice, or for delay. Sometimes they were paid by
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opposite parties, and, of course, for opposite ends."--_2 Middle
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Ages_, 438.
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In allusion to the provision of Magna Carta on this subject, Hallam
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says:
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"A law which enacts that justice shall neither be sold, denied, nor
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delayed, stamps with infamy that government under which it had become
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necessary."--_2 Middle Ages_, 451.
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Lingard, speaking of the times of Henry II., (say 1184,) says:
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"It was universally understood that money possessed greater influence
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than justice in the royal courts, and instances are on record, in
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which one party has made the king a present to accelerate, and the
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other by a more valuable offer has succeeded in retarding a decision.
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* * But besides the fines paid to the sovereigns, _the judges often
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exacted presents for themselves_, and loud complaints existed against
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their venality and injustice."--_2 Lingard_, 231.
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In the narrative of "The costs and charges which I, Richard de Anesty,
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bestowed in recovering the land of William, my uncle," (some fifty years
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before Magna Carta,) are the following items:
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"To Ralph, the king's physician, I gave thirty-six marks and one
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half; to the king an hundred marks; and to the queen one mark of
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gold." The result is thus stated. "At last, thanks to our lord the
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king, and by judgment of his court, my uncle's land was adjudged to
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me."--_2 Palgrave's Rise and Progress of the English Commonwealth_,
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p. 9 and 24.
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Palgrave also says:
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"The precious ore was cast into the scales of justice, even when held
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by the most conscientious of our Anglo-Saxon kings. A single case
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will exemplify the practices which prevailed. Alfric, the heir of
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'Aylwin, the black,' seeks to set aside the death-bed bequest, by
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which his kinsman bestowed four rich and fertile manors upon St.
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Benedict. Alfric, the claimant, was supported by extensive and
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powerful connexions; and Abbot Alfwine, the defendant, was well aware
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that there would be _danger_ in the discussion of the dispute in
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public, or before the Folkmoot, (people's meeting, or county court);
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or, in other words, that the Thanes of the shire would do their best
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to give a judgment in favor of their compeer. The plea being removed
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into the Royal Court, the abbot acted with that prudence which so
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often calls forth the praises of the monastic scribe. He gladly
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emptied twenty marks of gold into the sleeve of the Confessor,
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(Edward,) and five marks of gold presented to Edith, the Fair,
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encouraged her to aid the bishop, and to exercise her gentle
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influence in his favor. Alfric, with equal wisdom, withdrew from
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prosecuting the hopeless cause, in which his opponent might possess
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an advocate in the royal judge, and a friend in the king's consort.
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Both parties, therefore, found it desirable to come to an
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agreement."--_1 Palgrave's Rise and Progress, &c._, p. 650.
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But Magna Carta has another provision for the trial of _civil_ suits,
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that obviously had its origin in the corruption of the king's judges.
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The provision is, that four knights, to be chosen in every county, by
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the people of the county, shall sit with the king's judges, in the
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Common Pleas, in jury trials, (assizes,) on the trial of three certain
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kinds of suits, that were among the most important that were tried at
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all. The reason for this provision undoubtedly was, that the corruption
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and subserviency of the king's judges were so well known, that the
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people would not even trust them to sit alone in a jury trial of any
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considerable importance. The provision is this:
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_Chap. 22_, (of John's Charter.) "Common Pleas shall not follow our
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court, but shall be holden in some certain place. Trials upon the
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writ of _novel disseisin_, and of _Mort d'Ancester_, and of _Darrein
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Presentment_, shall be taken but in their proper counties, and after
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this manner: We, or, if we should be out of our realm, our chief
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justiciary, shall send two justiciaries through every county four
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times a year;[70] _who, with four knights chosen out of every shire,
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by the people, shall hold the assizes_ (juries) _in the county, on
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the day and at the place appointed_."
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It would be very unreasonable to suppose that the king's judges were
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allowed to _dictate_ the law to the juries, when the people would not
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even suffer them to sit alone in jury trials, but themselves chose four
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men to sit with them, to keep them honest.[71]
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This practice of sending the king's judges into the counties to preside
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at jury trials, was introduced by the Norman kings. Under the Saxons it
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was not so. _No officer of the king was allowed to preside at a jury
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trial; but only magistrates chosen by the people._[72]
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But the following chapter of John's charter, which immediately succeeds
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the one just quoted, and refers to the same suits, affords very strong,
|
||
|
not to say conclusive, proof, that juries judged of the law in civil
|
||
|
suits--that is, _made the law_, so far as their deciding according to
|
||
|
their own notions of justice could make the law.
|
||
|
|
||
|
_Chap. 23._ "And if, on the county day, the aforesaid assizes cannot
|
||
|
be taken, _so many knights and freeholders shall remain, of those who
|
||
|
shall have been present on said day, as that the judgments may be
|
||
|
rendered by them_, whether the business be more or less."
|
||
|
|
||
|
The meaning of this chapter is, that so many of the _civil_ suits, as
|
||
|
could not be tried on the day when the king's justices were present,
|
||
|
should be tried afterwards, _by the four knights before mentioned, and
|
||
|
the freeholders, that is, the jury_. It must be admitted, of course,
|
||
|
that the juries, in these cases, judged the matters of law, as well as
|
||
|
fact, unless it be presumed that the _knights_ dictated the law to the
|
||
|
jury--a thing of which there is no evidence at all.
|
||
|
|
||
|
As a final proof on this point, there is a statute enacted seventy years
|
||
|
after Magna Carta, which, although it is contrary to the common law, and
|
||
|
therefore void, is nevertheless good evidence, inasmuch as it contains
|
||
|
an acknowledgment, on the part of the king himself, that juries had a
|
||
|
right to judge of the whole matter, law and fact, in civil suits. The
|
||
|
provision is this:
|
||
|
|
||
|
"It is ordained, that the justices assigned to take the assizes,
|
||
|
shall not compel the jurors to say precisely whether it be disseisin,
|
||
|
or not, so that they do show the truth of the deed, and seek aid of
|
||
|
the justices. But if they will, of their own accord, say that it is
|
||
|
disseisin, or not, their verdict shall be admitted at their own
|
||
|
peril."--_13 Edward I._, st. 1, ch. 3, sec. 2. (1285.)
|
||
|
|
||
|
The question of "disseisin, or not," was a question of law, as well as
|
||
|
fact. This statute, therefore, admits that the law, as well as the fact,
|
||
|
was in the hands of the jury. The statute is nevertheless void, because
|
||
|
the king had no authority to give jurors a dispensation from the
|
||
|
obligation imposed upon them by their oaths and the "law of the land,"
|
||
|
that they should "make known the truth according their (own)
|
||
|
consciences." This they were bound to do, and there was no power in the
|
||
|
king to absolve them from the duty. And the attempt of the king thus to
|
||
|
absolve them, and authorize them to throw the case into the hands of the
|
||
|
judges for decision, was simply an illegal and unconstitutional attempt
|
||
|
to overturn the "law of the land," which he was sworn to maintain, and
|
||
|
gather power into his own hands, through his judges. He had just as much
|
||
|
constitutional power to enact that the jurors should not be compelled to
|
||
|
declare the _facts_, but that they might leave _them_ to be determined
|
||
|
by the king's judges, as he had to enact that they should not be
|
||
|
compelled to declare the _law_, but might leave _it_ to be decided by
|
||
|
the king's judges. It was as much the legal duty of the jury to decide
|
||
|
the law as to decide the fact; and no law of the king could affect their
|
||
|
obligation to do either. And this statute is only one example of the
|
||
|
numberless contrivances and usurpations which have been resorted to, for
|
||
|
the purpose of destroying the original and genuine trial by jury.
|
||
|
|
||
|
[Footnote 68: _Marches_, the limits, or boundaries, between England and
|
||
|
Wales.]
|
||
|
|
||
|
[Footnote 69: That the kings would have had no scruples to enact laws
|
||
|
for the special purpose of plundering the people, by means of the
|
||
|
judgments of juries, if they could have got juries to acknowledge the
|
||
|
authority of their laws, is evident from the audacity with which they
|
||
|
plundered them, without any judgments of juries to authorize them.
|
||
|
|
||
|
It is not necessary to occupy space here to give details as to these
|
||
|
robberies; but only some evidence of the general fact.
|
||
|
|
||
|
Hallam says, that "For the first three reigns (of the Norman kings) *
|
||
|
* the intolerable exactions of tribute, the rapine of purveyance, the
|
||
|
iniquity of royal courts, are continually in the mouths of the
|
||
|
historians. 'God sees the wretched people,' says the Saxon
|
||
|
Chronicler, 'most unjustly oppressed; first they are despoiled of
|
||
|
their possessions, and then butchered.' This was a grievous year
|
||
|
(1124). Whoever had any property, lost it by heavy taxes and unjust
|
||
|
decrees."--_2 Middle Ages_, 435-6.
|
||
|
|
||
|
"In the succeeding reign of _John_, all the rapacious exactions usual
|
||
|
to these Norman kings were not only redoubled, but mingled with
|
||
|
outrages of tyranny still more intolerable. * *
|
||
|
|
||
|
"In 1207 John took a seventh of the movables of lay and spiritual
|
||
|
persons, all murmuring, but none daring to speak against
|
||
|
it."--_Ditto_, 446.
|
||
|
|
||
|
In Hume's account of the extortions of those times, the following
|
||
|
paragraph occurs:
|
||
|
|
||
|
"But the most barefaced acts of tyranny and oppression were practised
|
||
|
against the Jews, who were entirely out of the protection of the law,
|
||
|
and were abandoned to the immeasurable rapacity of the king and his
|
||
|
ministers. Besides many other indignities, to which they were
|
||
|
continually exposed, it appears that they were once all thrown into
|
||
|
prison, and the sum of 66,000 marks exacted for their liberty. At
|
||
|
another time, Isaac, the Jew, paid alone 5100 marks; Brun, 3000
|
||
|
marks; Jurnet, 2000; Bennet, 500. At another, Licorica, widow of
|
||
|
David, the Jew of Oxford, was required to pay 6000 marks."--_Hume's
|
||
|
Hist. Eng., Appendix_ 2.
|
||
|
|
||
|
Further accounts of the extortions and oppressions of the kings may be
|
||
|
found in Hume's History, Appendix 2, and in Hallam's Middle Ages, vol.
|
||
|
2, p. 435 to 446.
|
||
|
|
||
|
By Magna Carta John bound himself to make restitution for some of the
|
||
|
spoliations he had committed upon individuals "_without the legal
|
||
|
judgment of their peers_."--_See Magna Carta of John_, ch. 60, 61, 65
|
||
|
and 66.
|
||
|
|
||
|
One of the great charges, on account of which the nation rose against
|
||
|
John, was, that he plundered individuals of their property, "_without
|
||
|
legal judgment of their peers_." Now it was evidently very weak and
|
||
|
short-sighted in John to expose himself to such charges, _if his laws
|
||
|
were really obligatory upon the peers_; because, in that case, he could
|
||
|
have enacted any laws that were necessary for his purpose, and then, by
|
||
|
civil suits, have brought the cases before juries for their "judgment,"
|
||
|
and thus have accomplished all his robberies in a perfectly legal
|
||
|
manner.
|
||
|
|
||
|
There would evidently have been no sense in these complaints, that he
|
||
|
deprived men of their property "_without legal judgment of their
|
||
|
peers_," if his laws had been binding upon the peers; because he could
|
||
|
then have made the same spoliations as well with the judgment of the
|
||
|
peers as without it. Taking the judgment of the peers in the matter,
|
||
|
would have been only a ridiculous and useless formality, if they were to
|
||
|
exercise no discretion or conscience of their own, independently of the
|
||
|
laws of the king.
|
||
|
|
||
|
It may here be mentioned, in passing, that the same would be true in
|
||
|
criminal matters, if the king's laws were obligatory upon juries.
|
||
|
|
||
|
As an illustration of what tyranny the kings would sometimes practise,
|
||
|
Hume says:
|
||
|
|
||
|
"It appears from the Great Charter itself, that not only John, a
|
||
|
tyrannical prince, and Richard, a violent one, but their father
|
||
|
Henry, under whose reign the prevalence of gross abuses is the least
|
||
|
to be suspected, were accustomed, from their sole authority, without
|
||
|
process of law, to imprison, banish, and attaint the freemen of their
|
||
|
kingdom."--_Hume, Appendix_ 2.
|
||
|
|
||
|
The provision, also, in the 64th chapter of Magna Carta, that "all
|
||
|
unjust and illegal fines, and all amercements, _imposed unjustly, and
|
||
|
contrary to the Law of the Land, shall be entirely forgiven_," &c.; and
|
||
|
the provision, in chapter 61, that the king "will cause full justice to
|
||
|
be administered" in regard to "all those things, of which any person
|
||
|
has, without legal judgment of his peers, been dispossessed or deprived,
|
||
|
either by King Henry, our father, or our brother, King Richard,"
|
||
|
indicate the tyrannical practices that prevailed.
|
||
|
|
||
|
We are told also that John himself "had dispossessed several great
|
||
|
men without any judgment of their peers, condemned others to cruel
|
||
|
deaths, * * insomuch that his tyrannical will stood instead of a
|
||
|
law."--_Echard's History of England_, 106.
|
||
|
|
||
|
Now all these things were very unnecessary and foolish, if his laws were
|
||
|
binding upon juries; because, in that case, he could have procured the
|
||
|
conviction of these men in a legal manner, and thus have saved the
|
||
|
necessity of such usurpation. In short, if the laws of the king had been
|
||
|
binding upon juries, there is no robbery, vengeance, or oppression,
|
||
|
which he could not have accomplished through the judgments of juries.
|
||
|
This consideration is sufficient, of itself, to prove that the laws of
|
||
|
the king were of no authority over a jury, in either civil or criminal
|
||
|
cases, unless the juries regarded the laws as just in themselves.]
|
||
|
|
||
|
[Footnote 70: By the Magna Carta of Henry III. this is changed to once a
|
||
|
year.]
|
||
|
|
||
|
[Footnote 71: From the provision of Magna Carta, cited in the text, it
|
||
|
must be inferred that there can be no legal trial by jury, in civil
|
||
|
cases, if only the king's justices preside; that, to make the trial
|
||
|
legal, there must be other persons, chosen by the people, to sit with
|
||
|
them; the object being to prevent the jury's being deceived by the
|
||
|
justices. I think we must also infer that the king's justices could sit
|
||
|
only in the three actions specially mentioned. We cannot go beyond the
|
||
|
letter of Magna Carta, in making innovations upon the common law, which
|
||
|
required all presiding officers in jury trials to be elected by the
|
||
|
people.]
|
||
|
|
||
|
[Footnote 72: "The earls, sheriffs, and head-boroughs were annually
|
||
|
elected in the full folcmote, (people's meeting)."--_Introduction to
|
||
|
Gilbert's History of the Common Pleas_, p. 2, _note_.
|
||
|
|
||
|
"It was the especial province of the earldomen or earl to attend the
|
||
|
shyre-meeting, (the county court,) twice a year, and there officiate as
|
||
|
the county judge in expounding the secular laws, as appears by the fifth
|
||
|
of Edgar's laws."--_Same_, p. 2, _note_.
|
||
|
|
||
|
"Every ward had its proper alderman, who was _chosen_, and not imposed
|
||
|
by the prince."--_Same_, p. 4, _text_.
|
||
|
|
||
|
"As the aldermen, or earls, were always _chosen_" (by the people) "from
|
||
|
among the greatest thanes, who in those times were generally more
|
||
|
addicted to arms than to letters, they were but ill-qualified for the
|
||
|
administration of justice, and performing the civil duties of their
|
||
|
office."--_3 Henry's History of Great Britain_, 343.
|
||
|
|
||
|
"But none of these thanes were annually elected in the full folcmote,
|
||
|
(people's meeting,) _as the earls, sheriffs, and head-boroughs were_;
|
||
|
nor did King Alfred (as this author suggests) deprive the people of the
|
||
|
election of those last mentioned magistrates and nobles, much less did
|
||
|
he appoint them himself."--_Introd. to Gilbert's Hist. Com. Pleas_, p.
|
||
|
2, _note_.
|
||
|
|
||
|
"The sheriff was usually not appointed by the lord, but elected by the
|
||
|
freeholders of the district."--_Political Dictionary_, word _Sheriff_.
|
||
|
|
||
|
"Among the most remarkable of the Saxon laws we may reckon * * the
|
||
|
election of their magistrates by the people, originally even that of
|
||
|
their kings, till dear-bought experience evinced the convenience and
|
||
|
necessity of establishing an hereditary succession to the crown. But
|
||
|
that (the election) of all subordinate magistrates, their military
|
||
|
officers or heretochs, their sheriffs, their conservators of the peace,
|
||
|
their coroners, their portreeves, (since changed into mayors and
|
||
|
bailiffs,) and even their tithing-men and borsholders at the last,
|
||
|
continued, some, till the Norman conquest, others for two centuries
|
||
|
after, and some remain to this day."--_4 Blackstone_, 413.
|
||
|
|
||
|
"The election of sheriffs was left to the people, _according to ancient
|
||
|
usage_."--_St. West._ 1, c. 27.--_Crabbe's History of English Law_,
|
||
|
181.]
|