2023-08-03 21:50:47 +00:00
|
|
|
|
# THE TRIAL BY JURY, AS DEFINED BY MAGNA CARTA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
That the trial by jury is all that has been claimed for it in the
|
|
|
|
|
preceding chapter, is proved both by the history and the language of the
|
|
|
|
|
Great Charter of English Liberties, to which we are to look for a true
|
|
|
|
|
definition of the trial by jury, and of which the guaranty for that
|
|
|
|
|
trial is the vital, and most memorable, part.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
## The History of Magna Carta
|
|
|
|
|
|
|
|
|
|
In order to judge of the object and meaning of that chapter of Magna
|
|
|
|
|
Carta which secures the trial by jury, it is to be borne in mind that,
|
|
|
|
|
at the time of Magna Carta, the king (with exceptions immaterial to this
|
|
|
|
|
discussion, but which will appear hereafter) was, constitutionally, the
|
|
|
|
|
entire government; the sole _legislative_, _judicial_, and executive
|
|
|
|
|
power of the nation. The executive and judicial officers were merely his
|
|
|
|
|
servants, appointed by him, and removable at his pleasure. In addition
|
|
|
|
|
to this, “the king himself often sat in his court, which always attended
|
|
|
|
|
his person. He there heard causes, and pronounced judgment; and though
|
|
|
|
|
he was assisted by the advice of other members, it is not to be imagined
|
|
|
|
|
that a decision could be obtained contrary to his inclination or
|
|
|
|
|
opinion.”[^5] Judges were in those days, and afterwards, such abject
|
|
|
|
|
servants of the king, that “we find that King Edward I. (1272 to 1307)
|
|
|
|
|
fined and imprisoned his judges, in the same manner as Alfred the Great,
|
|
|
|
|
among the Saxons, had done before him, by the sole exercise of his
|
|
|
|
|
authority.”[^6]
|
|
|
|
|
|
|
|
|
|
Parliament, so far as there was a parliament, was a mere _council_ of
|
|
|
|
|
the king.[^7] It assembled only at the pleasure of the king; sat only
|
|
|
|
|
during his pleasure; and when sitting had no power, so far as _general_
|
|
|
|
|
legislation was concerned, beyond that of simply _advising_ the king.
|
|
|
|
|
The only legislation to which their assent was constitutionally
|
|
|
|
|
necessary, was demands for money and military services for
|
|
|
|
|
_extraordinary_ occasions. Even Magna Carta itself makes no provisions
|
|
|
|
|
whatever for any parliaments, except when the king should want means to
|
|
|
|
|
carry on war, or to meet some other _extraordinary_ necessity.[^8] He had
|
|
|
|
|
no need of parliaments to raise taxes for the _ordinary_ purposes of
|
|
|
|
|
government; for his revenues from the rents of the crown lands and other
|
|
|
|
|
sources, were ample for all except extraordinary occasions. Parliaments,
|
|
|
|
|
too, when assembled, consisted only of bishops, barons, and other great
|
|
|
|
|
men of the kingdom, unless the king chose to invite others.[^9] There was
|
|
|
|
|
no House of Commons at that time, and the people had no right to be
|
|
|
|
|
heard, unless as petitioners.[^10]
|
|
|
|
|
|
|
|
|
|
Even when laws were made at the time of a parliament, they were made in
|
|
|
|
|
the name of the king alone. Sometimes it was inserted in the laws, that
|
|
|
|
|
they were made with the _consent_ or _advice_ of the bishops, barons,
|
|
|
|
|
and others assembled; but often this was omitted. Their consent or
|
|
|
|
|
advice was evidently a matter of no legal importance to the enactment or
|
|
|
|
|
validity of the laws, but only inserted, when inserted at all, with a
|
|
|
|
|
view of obtaining a more willing submission to them on the part of the
|
|
|
|
|
people. The style of enactment generally was, either “_The King wills
|
|
|
|
|
and commands_,” or some other form significant of the sole legislative
|
|
|
|
|
authority of the king. The king could pass laws at any time when it
|
|
|
|
|
pleased him. The presence of a parliament was wholly unnecessary. Hume
|
|
|
|
|
says, “It is asserted by Sir Harry Spelman, as an undoubted fact, that,
|
|
|
|
|
during the reigns of the Norman princes, every order of the king, issued
|
|
|
|
|
with the consent of his privy council, had the full force of law.”[^11]
|
|
|
|
|
And other authorities abundantly corroborate this assertion.[^12]
|
|
|
|
|
|
|
|
|
|
The king was, therefore, constitutionally the government; and the only
|
|
|
|
|
legal limitation upon his power seems to have been simply the _Common
|
|
|
|
|
Law_, usually called “_the law of the land_,” which he was bound by oath
|
|
|
|
|
to maintain; (which oath had about the same practical value as similar
|
|
|
|
|
oaths have always had.) This “law of the land” seems not to have been
|
|
|
|
|
regarded at all by many of the kings, except so far as they found it
|
|
|
|
|
convenient to do so, or were constrained to observe it by the fear of
|
|
|
|
|
arousing resistance. But as all people are slow in making resistance,
|
|
|
|
|
oppression and usurpation often reached a great height; and, in the case
|
|
|
|
|
of John, they had become so intolerable as to enlist the nation almost
|
|
|
|
|
universally against him; and he was reduced to the necessity of
|
|
|
|
|
complying with any terms the barons saw fit to dictate to him.
|
|
|
|
|
|
|
|
|
|
It was under these circumstances, that the Great Charter of English
|
|
|
|
|
Liberties was granted. The barons of England, sustained by the common
|
|
|
|
|
people, having their king in their power, compelled him, as the price of
|
|
|
|
|
his throne, to pledge himself that he would punish no freeman for a
|
|
|
|
|
violation of any of his laws, unless with the consent of the peers—that
|
|
|
|
|
is, the equals—of the accused.
|
|
|
|
|
|
|
|
|
|
The question here arises, Whether the barons and people intended that
|
|
|
|
|
those peers (the jury) should be mere puppets in the hands of the king,
|
|
|
|
|
exercising no opinion of their own as to the intrinsic merits of the
|
|
|
|
|
accusations they should try, or the _justice_ of the laws they should be
|
|
|
|
|
called on to enforce? Whether those haughty and victorious barons, when
|
|
|
|
|
they had their tyrant king at their feet, gave back to him his throne,
|
|
|
|
|
with full power to enact any tyrannical laws he might please, reserving
|
|
|
|
|
only to a jury (“the country”) the contemptible and servile privilege of
|
|
|
|
|
ascertaining, (under the dictation of the king, or his judges, as to the
|
|
|
|
|
laws of evidence), the simple _fact_ whether those laws had been
|
|
|
|
|
transgressed? Was this the only restraint, which, when they had all
|
|
|
|
|
power in their hands, they placed upon the tyranny of a king, whose
|
|
|
|
|
oppressions they had risen in arms to resist? Was it to obtain such a
|
|
|
|
|
charter as that, that the whole nation had united, as it were, like one
|
|
|
|
|
man, against their king? Was it on such a charter that they intended to
|
|
|
|
|
rely, for all future time, for the security of their liberties? No. They
|
|
|
|
|
were engaged in no such senseless work as that. On the contrary, when
|
|
|
|
|
they required him to renounce forever the power to punish any freeman,
|
|
|
|
|
unless by the consent of his peers, they intended those peers should
|
|
|
|
|
judge of, and try, the whole case on its merits, independently of all
|
|
|
|
|
arbitrary legislation, or judicial authority, on the part of the king.
|
|
|
|
|
In this way they took the liberties of each individual—and thus the
|
|
|
|
|
liberties of the whole people—entirely out of the hands of the king,
|
|
|
|
|
and out of the power of his laws, and placed them in the keeping of the
|
|
|
|
|
people themselves. And this it was that made the trial by jury the
|
|
|
|
|
palladium of their liberties.
|
|
|
|
|
|
|
|
|
|
The trial by jury, be it observed, was the only real barrier interposed
|
|
|
|
|
by them against absolute despotism. Could this trial, then, have been
|
|
|
|
|
such an entire farce as it necessarily must have been, if the jury had
|
|
|
|
|
had no power to judge of the justice of the laws the people were
|
|
|
|
|
required to obey? Did it not rather imply that the jury were to judge
|
|
|
|
|
independently and fearlessly as to everything involved in the charge,
|
|
|
|
|
and especially as to its intrinsic justice, and thereon give their
|
|
|
|
|
decision, (unbiased by any legislation of the king,) whether the accused
|
|
|
|
|
might be punished? The reason of the thing, no less than the historical
|
|
|
|
|
celebrity of the events, as securing the liberties of the people, and
|
|
|
|
|
the veneration with which the trial by jury has continued to be
|
|
|
|
|
regarded, notwithstanding its essence and vitality have been almost
|
|
|
|
|
entirely extracted from it in practice, would settle the question, if
|
|
|
|
|
other evidences had left the matter in doubt.
|
|
|
|
|
|
|
|
|
|
Besides, if his laws were to be authoritative with the jury, why should
|
|
|
|
|
John indignantly refuse, as at first he did, to grant the charter, (and
|
|
|
|
|
finally grant it only when brought to the last extremity,) on the ground
|
|
|
|
|
that it deprived him of all power, and left him only the name of a king?
|
|
|
|
|
_He_ evidently understood that the juries were to veto his laws, and
|
|
|
|
|
paralyze his power, at discretion, by forming their own opinions as to
|
|
|
|
|
the true character of the offences they were to try, and the laws they
|
|
|
|
|
were to be called on to enforce; and that “_the king wills and
|
|
|
|
|
commands_” was to have no weight with them contrary to their own
|
|
|
|
|
judgments of what was intrinsically right.[^13]
|
|
|
|
|
|
|
|
|
|
The barons and people having obtained by the charter all the liberties
|
|
|
|
|
they had demanded of the king, it was further provided by the charter
|
|
|
|
|
itself that twenty-five barons should be appointed by the barons, out of
|
|
|
|
|
their number, to keep special vigilance in the kingdom to see that the
|
|
|
|
|
charter was observed, with authority to make war upon the king in case
|
|
|
|
|
of its violation. The king also, by the charter, so far absolved all the
|
|
|
|
|
people of the kingdom from their allegiance to him, as to authorize and
|
|
|
|
|
require them to swear to obey the twenty-five barons, in case they
|
|
|
|
|
should make war upon the king for infringement of the charter. It was
|
|
|
|
|
then thought by the barons and people, that something substantial had
|
|
|
|
|
been done for the security of their liberties.
|
|
|
|
|
|
|
|
|
|
This charter, in its most essential features, and without any abatement
|
|
|
|
|
as to the trial by jury, has since been confirmed more than thirty
|
|
|
|
|
times; and the people of England have always had a traditionary idea
|
|
|
|
|
that it was of some value as a guaranty against oppression. Yet that
|
|
|
|
|
idea has been an entire delusion, unless the jury have had the right to
|
|
|
|
|
judge of the justice of the laws they were called on to enforce.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
## The Language of Magna Carta
|
|
|
|
|
|
|
|
|
|
The language of the Great Charter establishes the same point that is
|
|
|
|
|
established by its history, viz., that it is the right and duty of the
|
|
|
|
|
jury to judge of the justice of the laws.
|
|
|
|
|
|
|
|
|
|
The chapter guaranteeing the trial by jury is in these words:
|
|
|
|
|
|
|
|
|
|
> “Nullus liber homo capiatur, vel imprisonetur, aut disseisetur, aut
|
|
|
|
|
> utlagetur, aut exuletur, aut aliquo modo destruatur; nec super eum
|
|
|
|
|
> ibimus, nec super eum mittemus, nisi per legale judicium parium
|
|
|
|
|
> suorum, vel per legem terræ.”[^14]
|
|
|
|
|
|
|
|
|
|
The corresponding chapter in the Great Charter, granted by Henry III.,
|
|
|
|
|
(1225,) and confirmed by Edward I., (1297,) (which charter is now
|
|
|
|
|
considered the basis of the English laws and constitution,) is in nearly
|
|
|
|
|
the same words, as follows:
|
|
|
|
|
|
|
|
|
|
> “Nullus liber homo capiatur, vel imprisonetur, aut disseisetur de
|
|
|
|
|
> libero tenemento, vel libertatibus, vel liberis consuetudinibus suis,
|
|
|
|
|
> aut utlagetur, aut exuletur, aut aliquo modo destruatur, nec super
|
|
|
|
|
> eum ibimus, nec super eum mittemus, nisi per legale judicium parium
|
|
|
|
|
> suorum, vel per legem terræ.”
|
|
|
|
|
|
|
|
|
|
The most common translation of these words, at the present day, is as
|
|
|
|
|
follows:
|
|
|
|
|
|
|
|
|
|
> “No freeman shall be arrested, or imprisoned, or deprived of his
|
|
|
|
|
> freehold, or his liberties, or free customs, or outlawed, or exiled,
|
|
|
|
|
> or in any manner destroyed, _nor will we (the king) pass upon him,
|
|
|
|
|
> nor condemn him_, unless by the judgment of his peers, or the law of
|
|
|
|
|
> the land.”
|
|
|
|
|
|
|
|
|
|
> “_Nec super eum ibimus, nec super eum mittemus._”
|
|
|
|
|
|
|
|
|
|
There has been much confusion and doubt as to the true meaning of the
|
|
|
|
|
words, “_nec super eum ibimus, nec super eum mittemus_.” The more common
|
|
|
|
|
rendering has been, “_nor will we pass upon him, nor condemn him_.” But
|
|
|
|
|
some have translated them to mean, “_nor will we pass upon him, nor
|
|
|
|
|
commit him to prison_.” Coke gives still a different rendering, to the
|
|
|
|
|
effect that “No man shall be condemned at the king’s suit, either before
|
|
|
|
|
the king in his bench, nor before any other commissioner or judge
|
|
|
|
|
whatsoever.”[^15]
|
|
|
|
|
|
|
|
|
|
But all these translations are clearly erroneous. In the first place,
|
|
|
|
|
“_nor will we pass upon him_,”—meaning thereby to decide upon his guilt
|
|
|
|
|
or innocence _judicially_—is not a correct rendering of the words,
|
|
|
|
|
“_nec super eum ibimus_.” There is nothing whatever, in these latter
|
|
|
|
|
words, that indicates _judicial_ action or opinion at all. The words, in
|
|
|
|
|
their common signification, describe _physical_ action alone. And the
|
|
|
|
|
true translation of them, as will hereafter be seen, is, _“nor will we
|
|
|
|
|
proceed against him,” executively_.
|
|
|
|
|
|
|
|
|
|
In the second place, the rendering, “_nor will we condemn him_,” bears
|
|
|
|
|
little or no analogy to any common, or even uncommon, signification of
|
|
|
|
|
the words “_nec super eum mittemus_.” There is nothing in these latter
|
|
|
|
|
words that indicates _judicial_ action or decision. Their common
|
|
|
|
|
signification, like that of the words _nec super eum ibimus_, describes
|
|
|
|
|
_physical_ action alone. “_Nor will we send upon (or against) him_,”
|
|
|
|
|
would be the most obvious translation, and, as we shall hereafter see,
|
|
|
|
|
such is the true translation.
|
|
|
|
|
|
|
|
|
|
But although these words describe _physical_ action, on the part of the
|
|
|
|
|
king, as distinguished from judicial, they nevertheless do not mean, as
|
|
|
|
|
one of the translations has it, “_nor will we commit him to prison_;”
|
|
|
|
|
for that would be a mere repetition of what had been already declared by
|
|
|
|
|
the words “_nec imprisonetur_.” Besides, there is nothing about prisons
|
|
|
|
|
in the words “_nec super eum mittemus_;” nothing about sending _him_
|
|
|
|
|
anywhere; but only about sending (something or somebody) _upon_ him, or
|
|
|
|
|
_against_ him—that is, _executively_.
|
|
|
|
|
|
|
|
|
|
Coke’s rendering is, if possible, the most absurd and gratuitous of all.
|
|
|
|
|
What is there in the words, “_nec super eum mittemus_” that can be made
|
|
|
|
|
to mean “_nor shall he be condemned before any other commissioner or
|
|
|
|
|
judge whatsoever_?” Clearly there is nothing. The whole rendering is a
|
|
|
|
|
sheer fabrication. And the whole object of it is to give color for the
|
|
|
|
|
exercise of a _judicial_ power, by the king, or his judges, which is
|
|
|
|
|
nowhere given them.
|
|
|
|
|
|
|
|
|
|
Neither the words, “_nec super eum ibimus, nec super eum mittemus_,” nor
|
|
|
|
|
any other words in the whole chapter, authorize, provide for, describe,
|
|
|
|
|
or suggest, any _judicial_ action whatever, on the part either of the
|
|
|
|
|
king, or of his judges, or of anybody, _except the peers, or jury_.
|
|
|
|
|
There is nothing about the king’s _judges_ at all. And there is nothing
|
|
|
|
|
whatever, in the whole chapter, _so far as relates to the action of the
|
|
|
|
|
king_, that describes or suggests anything but _executive_ action.[^16]
|
|
|
|
|
|
|
|
|
|
But that all these translations are certainly erroneous, is proved by a
|
|
|
|
|
temporary charter, granted by John a short time previous to the Great
|
|
|
|
|
Charter, for the purpose of giving an opportunity for conference,
|
|
|
|
|
arbitration, and reconciliation between him and his barons. It was to
|
|
|
|
|
have force until the matters in controversy between them could be
|
|
|
|
|
submitted to the Pope, and to other persons to be chosen, some by the
|
|
|
|
|
king, and some by the barons. The words of the charter are as follows:
|
|
|
|
|
|
|
|
|
|
“Sciatis nos concessisse baronibus nostris qui contra nos sunt quod nec
|
|
|
|
|
eos nec homines suos capiemus, nec disseisiemus _nec super eos per vim
|
|
|
|
|
vel per arma ibimus_ nisi per legem regni nostri vel per judicium parium
|
|
|
|
|
suorum in curia nostra donec consideratio facta fuerit,” &c., &c.
|
|
|
|
|
|
|
|
|
|
That is, “Know that we have granted to our barons who are opposed to us,
|
|
|
|
|
that we will neither arrest them nor their men, nor disseize them, _nor
|
|
|
|
|
will we proceed against them by force or by arms_, unless by the law of
|
|
|
|
|
our kingdom, or by the judgment of their peers in our court, until
|
|
|
|
|
consideration shall be had,” &c., &c.
|
|
|
|
|
|
|
|
|
|
A copy of this charter is given in a note in Blackstone’s Introduction
|
|
|
|
|
to the Charters.[^17]
|
|
|
|
|
|
|
|
|
|
Mr. Christian speaks of this charter as settling the true meaning of the
|
|
|
|
|
corresponding clause of Magna Carta, on the principle that laws and
|
|
|
|
|
charters on the same subject are to be construed with reference to each
|
|
|
|
|
other. See _3 Christian’s Blackstone_, 41, _note_.
|
|
|
|
|
|
|
|
|
|
The true meaning of the words, _nec super eum ibimus, nec super eum
|
|
|
|
|
mittemus_, is also proved by the “_Articles of the Great Charter of
|
|
|
|
|
Liberties_,” demanded of the king by the barons, and agreed to by the
|
|
|
|
|
king, under seal, a few days before the date of the Charter, and from
|
|
|
|
|
which the Charter was framed.[^18] Here the words used are these:
|
|
|
|
|
|
|
|
|
|
> “Ne corpus liberi hominis capiatur nec imprisonetur nec disseisetur
|
|
|
|
|
> nec utlagetur nec exuletur nec aliquo modo destruatur _nec rex eat
|
|
|
|
|
> vel mittat super eum vi_ nisi per judicium parium suorum vel per
|
|
|
|
|
> legem terræ.”
|
|
|
|
|
|
|
|
|
|
> That is, “The body of a freeman shall not be arrested, nor
|
|
|
|
|
> imprisoned, nor disseized, nor outlawed, nor exiled, nor in any
|
|
|
|
|
> manner destroyed, _nor shall the king proceed or send (any one)
|
|
|
|
|
> against him_ WITH FORCE, unless by the judgment of his peers, or the
|
|
|
|
|
> law of the land.”
|
|
|
|
|
|
|
|
|
|
The true translation of the words _nec super eum ibimus, nec super eum
|
|
|
|
|
mittemus_, in Magna Carta, is thus made certain, as follows, “_nor will
|
|
|
|
|
we (the king) proceed against him, nor send (any one) against him_ WITH
|
|
|
|
|
FORCE OR ARMS.”[^19]
|
|
|
|
|
|
|
|
|
|
It is evident that the difference between the true and false
|
|
|
|
|
translations of the words, _nec super eum ibimus, nec super eum
|
|
|
|
|
mittemus_, is of the highest legal importance, inasmuch as the true
|
|
|
|
|
translation, _nor will we (the king) proceed against him, nor send (any
|
|
|
|
|
one) against him by force or arms_, represents the king only in an
|
|
|
|
|
_executive_ character, _carrying the judgment of the peers and “the law
|
|
|
|
|
of the land” into execution_; whereas the false translation, _nor will
|
|
|
|
|
we pass upon him, nor condemn him_, gives color for the exercise of a
|
|
|
|
|
_judicial_ power, on the part of the king, to which the king had no
|
|
|
|
|
right, but which, according to the true translation, belongs wholly to
|
|
|
|
|
the jury.
|
|
|
|
|
|
|
|
|
|
> “_Per legale judicium parium suorum._”
|
|
|
|
|
|
|
|
|
|
The foregoing interpretation is corroborated, (if it were not already
|
|
|
|
|
too plain to be susceptible of corroboration,) by the true
|
|
|
|
|
interpretation of the phrase “_per legale judicium parium suorum_.”
|
|
|
|
|
|
|
|
|
|
In giving this interpretation, I leave out, for the present, the word
|
|
|
|
|
_legale_, which will be defined afterwards.
|
|
|
|
|
|
|
|
|
|
The true meaning of the phrase, _per judicium parium suorum_, is,
|
|
|
|
|
_according to the sentence of his peers_. The word _judicium, judgment_,
|
|
|
|
|
has a technical meaning in the law, signifying the decree rendered in
|
|
|
|
|
the decision of a cause. In civil suits this decision is called a
|
|
|
|
|
_judgment_; in chancery proceedings it is called a _decree_; in criminal
|
|
|
|
|
actions it is called a _sentence_, or _judgment_, indifferently. Thus,
|
|
|
|
|
in a criminal suit, “a motion in arrest of _judgment_” means a motion in
|
|
|
|
|
arrest of _sentence_.[^20]
|
|
|
|
|
|
|
|
|
|
In cases of sentence, therefore, in criminal suits, the words _sentence_
|
|
|
|
|
and _judgment_ are synonymous terms. They are, to this day, commonly
|
|
|
|
|
used in law books as synonymous terms. And the phrase _per judicium
|
|
|
|
|
parium suorum_, therefore, implies that the jury are to fix the
|
|
|
|
|
sentence.
|
|
|
|
|
|
|
|
|
|
The word _per_ means _according to_. Otherwise there is no sense in the
|
|
|
|
|
phrase _per judicium parium suorum_. There would be no sense in saying
|
|
|
|
|
that a king might imprison, disseize, outlaw, exile, or otherwise punish
|
|
|
|
|
a man, or proceed against him, or send any one against him, _by force or
|
|
|
|
|
arms, by_ a judgment of his peers; but there is sense in saying that the
|
|
|
|
|
king may imprison, disseize, and punish a man, or proceed against him,
|
|
|
|
|
or send any one against him, by force or arms, _according to_ a
|
|
|
|
|
judgment, or _sentence_, of his peers; because in that case the king
|
|
|
|
|
would be merely carrying the sentence or judgment of the peers into
|
|
|
|
|
execution.
|
|
|
|
|
|
|
|
|
|
The word _per_, in the phrase “_per_ judicium parium suorum,” of course
|
|
|
|
|
means precisely what it does in the next phrase, “_per_ legem terræ;”
|
|
|
|
|
where it obviously means _according to_, and not _by_, as it is usually
|
|
|
|
|
translated. There would be no sense in saying that the king might
|
|
|
|
|
proceed against a man by force or arms, _by_ the law of the land; but
|
|
|
|
|
there is sense in saying that he may proceed against him, by force or
|
|
|
|
|
arms, _according to_ the law of the land; because the king would then be
|
|
|
|
|
acting only as an executive officer, carrying the law of the land into
|
|
|
|
|
execution. Indeed, the true meaning of the word _by_, as used in similar
|
|
|
|
|
cases now, always is _according to_; as, for example, when we say a
|
|
|
|
|
thing was done by the government, or by the executive, _by law_, we mean
|
|
|
|
|
only that it was done by them _according to law_; that is, that they
|
|
|
|
|
merely executed the law.
|
|
|
|
|
|
|
|
|
|
Or, if we say that the word _by_ signifies _by authority of_, the result
|
|
|
|
|
will still be the same; for nothing can be done _by authority of_ law,
|
|
|
|
|
except what the law itself authorizes or directs to be done; that is,
|
|
|
|
|
nothing can be done by authority of law, except simply to carry the law
|
|
|
|
|
itself into execution. So nothing could be done _by authority of_ the
|
|
|
|
|
sentence of the peers, or _by authority of_ “the law of the land,”
|
|
|
|
|
except what the sentence of the peers, or the law of the land,
|
|
|
|
|
themselves authorized or directed to be done; nothing, in short, but to
|
|
|
|
|
carry the sentence of the peers, or the law of the land, themselves into
|
|
|
|
|
execution.
|
|
|
|
|
|
|
|
|
|
Doing a thing _by_ law, or _according to_ law, is only carrying the law
|
|
|
|
|
into execution. And punishing a man _by_, or _according to_, the
|
|
|
|
|
sentence or judgment of his peers, is only carrying that sentence or
|
|
|
|
|
judgment into execution.
|
|
|
|
|
|
|
|
|
|
If these reasons could leave any doubt that the word _per_ is to be
|
|
|
|
|
translated _according to_, that doubt would be removed by the terms of
|
|
|
|
|
an antecedent guaranty for the trial by jury, granted by the Emperor
|
|
|
|
|
Conrad, of Germany,[^21] two hundred years before Magna Carta. Blackstone
|
|
|
|
|
cites it as follows:—(_3 Blackstone_, 350.)
|
|
|
|
|
|
|
|
|
|
“Nemo beneficium suum perdat, nisi _secundum_ consuetudinem antecessorum
|
|
|
|
|
nostrorum, et judicium parium suorum.” That is, No one shall lose his
|
|
|
|
|
estate,[^22] unless _according to_ (“_secundum_”) the custom (or law) of
|
|
|
|
|
our ancestors, and (_according to_) the sentence (or judgment) of his
|
|
|
|
|
peers.
|
|
|
|
|
|
|
|
|
|
The evidence is therefore conclusive that the phrase _per judicium
|
|
|
|
|
parium suorum_ means _according to the sentence of his peers_; thus
|
|
|
|
|
implying that the jury, and not the government, are to fix the sentence.
|
|
|
|
|
|
|
|
|
|
If any additional proof were wanted that juries were to fix the
|
|
|
|
|
sentence, it would be found in the following provisions of Magna Carta,
|
|
|
|
|
viz.:
|
|
|
|
|
|
|
|
|
|
> “A freeman shall not be amerced for a small crime, (_delicto_,) but
|
|
|
|
|
> according to the degree of the crime; and for a great crime in
|
|
|
|
|
> proportion to the magnitude of it, saving to him his
|
|
|
|
|
> _contenement_;[^23] and after the same manner a merchant, saving to
|
|
|
|
|
> him his merchandise. And a villein shall be amerced after the same
|
|
|
|
|
> manner, saving to him his waynage,[^24] if he fall under our mercy;
|
|
|
|
|
> _and none of the aforesaid amercements shall be imposed, (or
|
|
|
|
|
> assessed, ponatur,) but by the oath of honest men of the
|
|
|
|
|
> neighborhood. Earls and Barons shall not be amerced but by their
|
|
|
|
|
> peers_, and according to the degree of their crime.”[^25]
|
|
|
|
|
|
|
|
|
|
Pecuniary punishments were the most common punishments at that day, and
|
|
|
|
|
the foregoing provisions of Magna Carta show that the amount of those
|
|
|
|
|
punishments was to be fixed by the jury.
|
|
|
|
|
|
|
|
|
|
Fines went to the king, and were a source of revenue; and if the amounts
|
|
|
|
|
of the fines had been left to be fixed by the king, he would have had a
|
|
|
|
|
pecuniary temptation to impose unreasonable and oppressive ones. So,
|
|
|
|
|
also, in regard to other punishments than fines. If it were left to the
|
|
|
|
|
king to fix the punishment, he might often have motives to inflict cruel
|
|
|
|
|
and oppressive ones. As it was the object of the trial by jury to
|
|
|
|
|
protect the people against all possible oppression from the king, it was
|
|
|
|
|
necessary that the jury, and not the king, should fix the
|
|
|
|
|
punishments.[^26]
|
|
|
|
|
|
|
|
|
|
“_Legale._”
|
|
|
|
|
|
|
|
|
|
The word “_legale_,” in the phrase “_per legale judicium parium
|
|
|
|
|
suorum_,” doubtless means two things. 1. That the sentence must be given
|
|
|
|
|
in a legal manner; that is, by the legal number of jurors, legally
|
|
|
|
|
empanelled and sworn to try the cause; and that they give their judgment
|
|
|
|
|
or sentence after a legal trial, both in form and substance, has been
|
|
|
|
|
had. 2. That the sentence shall be for a legal cause or offence. If,
|
|
|
|
|
therefore, a jury should convict and sentence a man, either without
|
|
|
|
|
giving him a legal trial, or for an act that was not really and legally
|
|
|
|
|
criminal, the sentence itself would not be legal; and consequently this
|
|
|
|
|
clause forbids the king to carry such a sentence into execution; for the
|
|
|
|
|
clause guarantees that he will execute no judgment or sentence, except
|
|
|
|
|
it be _legale judicium_, a legal sentence. Whether a sentence be a legal
|
|
|
|
|
one, would have to be ascertained by the king or his judges, on appeal,
|
|
|
|
|
or might be judged of informally by the king himself.
|
|
|
|
|
|
|
|
|
|
The word “_legale_” clearly did not mean that the _judicium parium
|
|
|
|
|
suorum_ (judgment of his peers) should be a sentence which any law (of
|
|
|
|
|
the king) should _require_ the peers to pronounce; for in that case the
|
|
|
|
|
sentence would not be the sentence of the peers, but only the sentence
|
|
|
|
|
of the law, (that is, of the king); and the peers would be only a
|
|
|
|
|
mouthpiece of the law, (that is, of the king,) in uttering it.
|
|
|
|
|
|
|
|
|
|
> “_Per legem terræ._”
|
|
|
|
|
|
|
|
|
|
One other phrase remains to be explained, viz., “_per legem terræ_,”
|
|
|
|
|
“_by the law of the land_.”
|
|
|
|
|
|
|
|
|
|
All writers agree that this means the _common law_. Thus, Sir Matthew
|
|
|
|
|
Hale says:
|
|
|
|
|
|
|
|
|
|
> “The common law is sometimes called, by way of eminence, _lex terræ_,
|
|
|
|
|
> as in the statute of _Magna Carta_, chap. 29, where certainly the
|
|
|
|
|
> common law is principally intended by those words, _aut per legem
|
|
|
|
|
> terræ_; as appears by the exposition thereof in several subsequent
|
|
|
|
|
> statutes; and particularly in the statute of 28 Edward III., chap. 3,
|
|
|
|
|
> which is but an exposition and explanation of that statute. Sometimes
|
|
|
|
|
> it is called _lex Angliæ_, as in the statute of Merton, cap. 9,
|
|
|
|
|
> “_Nolumus leges Angliæ mutari_,” &c., (We will that the laws of
|
|
|
|
|
> England be not changed). Sometimes it is called _lex et consuetudo
|
|
|
|
|
> regni_ (the law and custom of the kingdom); as in all commissions of
|
|
|
|
|
> oyer and terminer; and in the statutes of 18 Edward I., cap.—, and
|
|
|
|
|
> _de quo warranto_, and divers others. But most commonly it is called
|
|
|
|
|
> the Common Law, or the Common Law of England; as in the statute
|
|
|
|
|
> _Articuli super Chartas_, cap. 15, in the statute 25 Edward III.,
|
|
|
|
|
> cap. 5, (4,) and infinite more records and statutes.”—1 _Hale’s
|
|
|
|
|
> History of the Common Law_, 128.
|
|
|
|
|
|
|
|
|
|
This common law, or “law of the land,” _the king was sworn to maintain_.
|
|
|
|
|
This fact is recognized by a statute made at Westminster, in 1346, by
|
|
|
|
|
Edward III., which commences in this manner:
|
|
|
|
|
|
|
|
|
|
> “Edward, by the Grace of God, &c., &c., to the Sheriff of Stafford,
|
|
|
|
|
> Greeting: Because that by divers complaints made to us, we have
|
|
|
|
|
> perceived that _the law of the land, which we by oath are bound to
|
|
|
|
|
> maintain_,” &c.—_St. 20 Edward III._
|
|
|
|
|
|
|
|
|
|
The foregoing authorities are cited to show to the unprofessional
|
|
|
|
|
reader, what is well known to the profession, that _legem terræ, the law
|
|
|
|
|
of the land_, mentioned in Magna Carta, was the common, ancient,
|
|
|
|
|
fundamental law of the land, which the kings were bound by oath to
|
|
|
|
|
observe; _and that it did not include any statutes or laws enacted by
|
|
|
|
|
the king himself, the legislative power of the nation_.
|
|
|
|
|
|
|
|
|
|
If the term _legem terræ_ had included laws enacted by the king himself,
|
|
|
|
|
the whole chapter of Magna Carta, now under discussion, would have
|
|
|
|
|
amounted to nothing as a protection to liberty; because it would have
|
|
|
|
|
imposed no restraint whatever upon the power of the king. The king could
|
|
|
|
|
make laws at any time, and such ones as he pleased. He could, therefore,
|
|
|
|
|
have done anything he pleased, _by the law of the land_, as well as in
|
|
|
|
|
any other way, if his own laws had been “_the law of the land_.” If his
|
|
|
|
|
own laws had been “the law of the land,” within the meaning of that term
|
|
|
|
|
as used in Magna Carta, this chapter of Magna Carta would have been
|
|
|
|
|
sheer nonsense, inasmuch as the whole purport of it would have been
|
|
|
|
|
simply that “no man shall be arrested, imprisoned, or deprived of his
|
|
|
|
|
freehold, or his liberties, or free customs, or outlawed, or exiled, or
|
|
|
|
|
in any manner destroyed (by the king); nor shall the king proceed
|
|
|
|
|
against him, nor send any one against him with force and arms, unless by
|
|
|
|
|
the judgment of his peers, _or unless the king shall please to do so_.”
|
|
|
|
|
|
|
|
|
|
This chapter of Magna Carta would, therefore, have imposed not the
|
|
|
|
|
slightest restraint upon the power of the king, or afforded the
|
|
|
|
|
slightest protection to the liberties of the people, if the laws of the
|
|
|
|
|
king had been embraced in the term _legem terræ_. But if _legem terræ_
|
|
|
|
|
was the common law, which the king was sworn to maintain, then a real
|
|
|
|
|
restriction was laid upon his power, and a real guaranty given to the
|
|
|
|
|
people for their liberties.
|
|
|
|
|
|
|
|
|
|
Such, then, being the meaning of _legem terræ_, the fact is established
|
|
|
|
|
that Magna Carta took an accused person entirely out of the hands of the
|
|
|
|
|
legislative power, that is, of the king; and placed him in the power and
|
|
|
|
|
under the protection of his peers, and the common law alone; that, in
|
|
|
|
|
short, Magna Carta suffered no man to be punished for violating any
|
|
|
|
|
enactment of the legislative power, unless the peers or equals of the
|
|
|
|
|
accused freely consented to it, or the common law authorized it; that
|
|
|
|
|
the legislative power, _of itself_, was wholly incompetent to _require_
|
|
|
|
|
the conviction or punishment of a man for any offence whatever.
|
|
|
|
|
|
|
|
|
|
_Whether Magna Carta allowed of any other trial than by jury._
|
|
|
|
|
|
|
|
|
|
The question here arises, whether “_legem terræ_” did not allow of some
|
|
|
|
|
other mode of trial than that by jury.
|
|
|
|
|
|
|
|
|
|
The answer is, that, at the time of Magna Carta, it is not probable,
|
|
|
|
|
(for the reasons given in the note,) that _legem terræ_ authorized, in
|
|
|
|
|
criminal cases, any other trial than the trial by jury; but, if it did,
|
|
|
|
|
it certainly authorized none but the trial by battle, the trial by
|
|
|
|
|
ordeal, and the trial by compurgators. These were the only modes of
|
|
|
|
|
trial, except by jury, that had been known in England, in criminal
|
|
|
|
|
cases, for some centuries previous to Magna Carta. All of them had
|
|
|
|
|
become nearly extinct at the time of Magna Carta, and it is not probable
|
|
|
|
|
that they were included in “_legem terræ_” as that term is used in that
|
|
|
|
|
instrument. But if they were included in it, they have now been long
|
|
|
|
|
obsolete, and were such as neither this nor any future age will ever
|
|
|
|
|
return to.[^27] For all practical purposes of the present day,
|
|
|
|
|
therefore, it may be asserted that Magna Carta allows no trial whatever
|
|
|
|
|
but trial by jury.
|
|
|
|
|
|
|
|
|
|
_Whether Magna Carta allowed sentence to be fixed otherwise than by the
|
|
|
|
|
jury._
|
|
|
|
|
|
|
|
|
|
Still another question arises on the words _legem terræ_, viz., whether,
|
|
|
|
|
in cases where the question of guilt was determined by the jury, the
|
|
|
|
|
amount of _punishment_ may not have been fixed by _legem terræ_, the
|
|
|
|
|
Common Law, instead of its being fixed by the jury.
|
|
|
|
|
|
|
|
|
|
I think we have no evidence whatever that, at the time of Magna Carta,
|
|
|
|
|
or indeed at any other time, _lex terræ_, the common law, fixed the
|
|
|
|
|
punishment in cases where the question of guilt was tried by a jury; or,
|
|
|
|
|
indeed, that it did in any other case. Doubtless certain punishments
|
|
|
|
|
were common and usual for certain offences; but I do not think it can be
|
|
|
|
|
shown that the _common law_, the _lex terræ_, which the king was sworn
|
|
|
|
|
to maintain, required any one specific punishment, or any precise amount
|
|
|
|
|
of punishment, for any one specific offence. If such a thing be claimed,
|
|
|
|
|
it must be shown, for it cannot be presumed. In fact, the contrary must
|
|
|
|
|
be presumed, because, in the nature of things, the amount of punishment
|
|
|
|
|
proper to be inflicted in any particular case, is a matter requiring the
|
|
|
|
|
exercise of discretion at the time, in order to adapt it to the moral
|
|
|
|
|
quality of the offence, which is different in each case, varying with
|
|
|
|
|
the mental and moral constitutions of the offenders, and the
|
|
|
|
|
circumstances of temptation or provocation. And Magna Carta recognizes
|
|
|
|
|
this principle distinctly, as has before been shown, in providing that
|
|
|
|
|
freemen, merchants, and villeins, “shall not be amerced for a small
|
|
|
|
|
crime, but according to the degree of the crime; and for a great crime
|
|
|
|
|
in proportion to the magnitude of it;” and that “none of the aforesaid
|
|
|
|
|
amercements shall be imposed (or assessed) but by the oaths of honest
|
|
|
|
|
men of the neighborhood;” and that “earls and barons shall not be
|
|
|
|
|
amerced but by their peers, and according to the quality of the
|
|
|
|
|
offence.”
|
|
|
|
|
|
|
|
|
|
All this implies that the moral quality of the offence was to be judged
|
|
|
|
|
of at the trial, and that the punishment was to be fixed by the
|
|
|
|
|
discretion of the peers, or jury, and not by any such unvarying rule as
|
|
|
|
|
a common law rule would be.
|
|
|
|
|
|
|
|
|
|
I think, therefore, it must be conceded that, in all cases, tried by a
|
|
|
|
|
jury, Magna Carta intended that the punishment should be fixed by the
|
|
|
|
|
jury, and not by the common law, for these several reasons.
|
|
|
|
|
|
|
|
|
|
1. It is uncertain whether the _common law_ fixed the punishment of any
|
|
|
|
|
offence whatever.
|
|
|
|
|
|
|
|
|
|
2. The words “_per judicium parium suorum_,” _according to the sentence
|
|
|
|
|
of his peers_, imply that the jury fixed the sentence in _some_ cases
|
|
|
|
|
tried by them; and if they fixed the sentence in some cases, it must be
|
|
|
|
|
presumed they did in all, unless the contrary be clearly shown.
|
|
|
|
|
|
|
|
|
|
3. The express provisions of Magna Carta, before adverted to, that no
|
|
|
|
|
amercements, or fines, should be imposed upon freemen, merchants, or
|
|
|
|
|
villeins, “but by the oath of honest men of the neighborhood,” and
|
|
|
|
|
“according to the degree of the crime,” and that “earls and barons
|
|
|
|
|
should not be amerced but by their peers, and according to the quality
|
|
|
|
|
of the offence,” _proves_ that, at least, there was no common law fixing
|
|
|
|
|
the amount of _fines_, or, if there were, that it was to be no longer in
|
|
|
|
|
force. And if there was no common law fixing the amount of _fines_, or
|
|
|
|
|
if it was to be no longer in force, it is reasonable to infer, (in the
|
|
|
|
|
absence of all evidence to the contrary,) either that the common law did
|
|
|
|
|
not fix the amount of any other punishment, or that it was to be no
|
|
|
|
|
longer in force for that purpose.[^28]
|
|
|
|
|
|
|
|
|
|
Under the Saxon laws, fines, payable to the injured party, seem to have
|
|
|
|
|
been the common punishments for all offences. Even murder was punishable
|
|
|
|
|
by a fine payable to the relatives of the deceased. The murder of the
|
|
|
|
|
king even was punishable by fine. When a criminal was unable to pay his
|
|
|
|
|
fine, his relatives often paid it for him. But if it were not paid, he
|
|
|
|
|
was put out of the protection of the law, and the injured parties, (or,
|
|
|
|
|
in the case of murder, the kindred of the deceased,) were allowed to
|
|
|
|
|
inflict such punishment as they pleased. And if the relatives of the
|
|
|
|
|
criminal protected him, it was lawful to take vengeance on them also.
|
|
|
|
|
Afterwards the custom grew up of exacting fines also to the king as a
|
|
|
|
|
punishment for offences.[^29] And this latter was, doubtless, the usual
|
|
|
|
|
punishment at the time of Magna Carta, as is evidenced by the fact that
|
|
|
|
|
for many years immediately following Magna Carta, nearly or quite all
|
|
|
|
|
statutes that prescribed any punishment at all, prescribed that the
|
|
|
|
|
offender should “be grievously amerced,” or “pay a great fine to the
|
|
|
|
|
king,” or a “grievous ransom,”—with the alternative in some cases
|
|
|
|
|
(perhaps _understood_ in all) of imprisonment, banishment, or outlawry,
|
|
|
|
|
in case of non-payment.[^30]
|
|
|
|
|
|
|
|
|
|
Judging, therefore, from the special provisions in Magna Carta,
|
|
|
|
|
requiring _fines_, or amercements, to be imposed only by juries,
|
|
|
|
|
(without mentioning any other punishments;) judging, also, from the
|
|
|
|
|
statutes which immediately followed Magna Carta, it is probable that the
|
|
|
|
|
Saxon custom of punishing all, or nearly all, offences by _fines_, (with
|
|
|
|
|
the alternative to the criminal of being imprisoned, banished, or
|
|
|
|
|
outlawed, and exposed to private vengeance, in case of non-payment,)
|
|
|
|
|
continued until the time of Magna Carta; and that in providing expressly
|
|
|
|
|
that _fines_ should be fixed by the juries, Magna Carta provided for
|
|
|
|
|
nearly or quite all the punishments that were expected to be inflicted;
|
|
|
|
|
that if there were to be any others, they were to be fixed by the
|
|
|
|
|
juries; and consequently that nothing was left to be fixed by “_legem
|
|
|
|
|
terræ_.”
|
|
|
|
|
|
|
|
|
|
But whether the common law fixed the punishment of any offences, or not,
|
|
|
|
|
is a matter of little or no practical importance at this day; because we
|
|
|
|
|
have no idea of going back to any common law punishments of six hundred
|
|
|
|
|
years ago, if, indeed, there were any such at that time. It is enough
|
|
|
|
|
for us to know—_and this is what it is material for us to know_—that
|
|
|
|
|
the jury fixed the punishments, in all cases, unless they were fixed by
|
|
|
|
|
the _common law_; that Magna Carta allowed no punishments to be
|
|
|
|
|
prescribed by statute—that is, by the legislative power—nor in any
|
|
|
|
|
other manner by the king, or his judges, in any case whatever; and,
|
|
|
|
|
consequently, that all statutes prescribing particular punishments for
|
|
|
|
|
particular offences, or giving the king’s judges any authority to fix
|
|
|
|
|
punishments, were void.
|
|
|
|
|
|
|
|
|
|
If the power to fix punishments had been left in the hands of the king,
|
|
|
|
|
it would have given him a power of oppression, which was liable to be
|
|
|
|
|
greatly abused; which there was no occasion to leave with him; and which
|
|
|
|
|
would have been incongruous with the whole object of this chapter of
|
|
|
|
|
Magna Carta; which object was to take all discretionary or arbitrary
|
|
|
|
|
power over individuals entirely out of the hands of the king, and his
|
|
|
|
|
laws, and entrust it only to the common law, and the peers, or
|
|
|
|
|
jury—that is, the people.
|
|
|
|
|
|
|
|
|
|
_What lex terræ did authorize._
|
|
|
|
|
|
|
|
|
|
But here the question arises, What then did “_legem terræ_” authorize
|
|
|
|
|
the king, (that is, the government,) to do in the case of an accused
|
|
|
|
|
person, if it neither authorized any other trial than that by jury, nor
|
|
|
|
|
any other punishments than those fixed by juries?
|
|
|
|
|
|
|
|
|
|
The answer is, that, owing to the darkness of history on the point, it
|
|
|
|
|
is probably wholly impossible, at this day, to state, _with any
|
|
|
|
|
certainty or precision_, anything whatever that the _legem terræ_ of
|
|
|
|
|
Magna Carta did authorize the king, (that is, the government,) to do,
|
|
|
|
|
(if, indeed, it authorized him to do anything,) in the case of
|
|
|
|
|
criminals, _other than to have them tried and sentenced by their peers,
|
|
|
|
|
for common law crimes_; and to carry that sentence into execution.
|
|
|
|
|
|
|
|
|
|
The trial by jury was a part of _legem terræ_, and we have the means of
|
|
|
|
|
knowing what the trial by jury was. The fact that the jury were to fix
|
|
|
|
|
the sentence, implies that they were to _try_ the accused; otherwise
|
|
|
|
|
they could not know what sentence, or whether any sentence, ought to be
|
|
|
|
|
inflicted upon him. Hence it follows that the jury were to judge of
|
|
|
|
|
everything involved in the trial; that is, they were to judge of the
|
|
|
|
|
nature of the offence, of the admissibility and weight of testimony, and
|
|
|
|
|
of everything else whatsoever that was of the essence of the trial. If
|
|
|
|
|
anything whatever could be dictated to them, either of law or evidence,
|
|
|
|
|
the sentence would not be theirs, but would be dictated to them by the
|
|
|
|
|
power that dictated to them the law or evidence. The trial and sentence,
|
|
|
|
|
then, were wholly in the hands of the jury.
|
|
|
|
|
|
|
|
|
|
We also have sufficient evidence of the nature of the oath administered
|
|
|
|
|
to jurors in criminal cases. It was simply, that _they would neither
|
|
|
|
|
convict the innocent, nor acquit the guilty_. This was the oath in the
|
|
|
|
|
Saxon times, and probably continued to be until Magna Carta.
|
|
|
|
|
|
|
|
|
|
We also know that, in case of _conviction_, the sentence of the jury was
|
|
|
|
|
not necessarily final; that the accused had the right of appeal to the
|
|
|
|
|
king and his judges, and to demand either a new trial, or an acquittal,
|
|
|
|
|
if the trial or conviction had been against law.
|
|
|
|
|
|
|
|
|
|
So much, therefore, of the _legem terræ_ of Magna Carta, we know with
|
|
|
|
|
reasonable certainty.
|
|
|
|
|
|
|
|
|
|
We also know that Magna Carta provides that “No bailiff (_balivus_)
|
|
|
|
|
shall hereafter put any man to his law, (put him on trial,) on his
|
|
|
|
|
single testimony, without credible witnesses brought to support it.”
|
|
|
|
|
Coke thinks “that under this word _balivus_, in this act, is
|
|
|
|
|
comprehended every justice, minister of the king, steward of the king,
|
|
|
|
|
steward and bailiff.” (2 Inst. 44.) And in support of this idea he
|
|
|
|
|
quotes from a very ancient law book, called the Mirror of Justices,
|
|
|
|
|
written in the time of Edward I., within a century after Magna Carta.
|
|
|
|
|
But whether this were really a common law principle, or whether the
|
|
|
|
|
provision grew out of that jealousy of the government which, at the time
|
|
|
|
|
of Magna Carta, had reached its height, cannot perhaps now be
|
|
|
|
|
determined.
|
|
|
|
|
|
|
|
|
|
We also know that, by Magna Carta, amercements, or fines, could not be
|
|
|
|
|
imposed to the ruin of the criminal; that, in the case of a freeman, his
|
|
|
|
|
_contenement_, or means of subsisting in the condition of a freeman,
|
|
|
|
|
must be saved to him; that, in the case of a merchant, his merchandise
|
|
|
|
|
must be spared; and in the case of a villein, his _waynage_, or
|
|
|
|
|
plough-tackle and carts. This also is likely to have been a principle of
|
|
|
|
|
the common law, inasmuch as, in that rude age, when the means of getting
|
|
|
|
|
employment as laborers were not what they are now, the man and his
|
|
|
|
|
family would probably have been liable to starvation, if these means of
|
|
|
|
|
subsistence had been taken from him.
|
|
|
|
|
|
|
|
|
|
We also know, _generally_, that, at the time of Magna Carta, _all acts
|
|
|
|
|
intrinsically criminal_, all trespasses against persons and property,
|
|
|
|
|
were crimes, according to _lex terræ_, or the common law.
|
|
|
|
|
|
|
|
|
|
Beyond the points now given, we hardly know anything, probably nothing
|
|
|
|
|
_with certainty_, as to what the “_legem terræ_” of _Magna Carta_ did
|
|
|
|
|
authorize, in regard to crimes. There is hardly anything extant that can
|
|
|
|
|
give us any real light on the subject.
|
|
|
|
|
|
|
|
|
|
It would seem, however, that there were, even at that day, some common
|
|
|
|
|
law principles governing arrests; and some common law forms and rules as
|
|
|
|
|
to holding a man for trial, (by bail or imprisonment;) putting him on
|
|
|
|
|
trial, such as by indictment or complaint; summoning and empanelling
|
|
|
|
|
jurors, &c., &c. Whatever these common law principles were, Magna Carta
|
|
|
|
|
requires them to be observed; for Magna Carta provides for the whole
|
|
|
|
|
proceedings, commencing with the arrest, (“no freeman shall be
|
|
|
|
|
_arrested_,” &c.,) and ending with the execution of the sentence. And it
|
|
|
|
|
provides that nothing shall be done, by the government, from beginning
|
|
|
|
|
to end, unless according to the sentence of the peers, or “_legem
|
|
|
|
|
terræ_,” the common law. The trial by peers was a part of _legem terræ_,
|
|
|
|
|
and we have seen that the peers must necessarily have governed the whole
|
|
|
|
|
proceedings at the trial. But all the proceedings for arresting the man,
|
|
|
|
|
and bringing him to trial, must have been had before the case could come
|
|
|
|
|
under the cognizance of the peers, and they must, therefore, have been
|
|
|
|
|
governed by other rules than the discretion of the peers. We may
|
|
|
|
|
_conjecture_, although we cannot perhaps know with much certainty, that
|
|
|
|
|
the _lex terræ_, or common law, governing these other proceedings, was
|
|
|
|
|
somewhat similar to the common law principles, on the same points, at
|
|
|
|
|
the present day. Such seem to be the opinions of Coke, who says that the
|
|
|
|
|
phrase _nisi per legem terræ_ means _unless by due process of law_.
|
|
|
|
|
|
|
|
|
|
Thus, he says:
|
|
|
|
|
|
|
|
|
|
“_Nisi per legem terræ. But by the law of the land._ For the true sense
|
|
|
|
|
and exposition of these words, see the statute of 37 Edw. III., cap. 8,
|
|
|
|
|
where the words, _by the law of the land_, are rendered _without due
|
|
|
|
|
process of law_; for there it is said, though it be contained in the
|
|
|
|
|
Great Charter, that no man be taken, imprisoned, or put out of his
|
|
|
|
|
freehold, _without process of the law; that is, by indictment or
|
|
|
|
|
presentment of good and lawful men, where such deeds be done in due
|
|
|
|
|
manner, or by writ original of the common law_.
|
|
|
|
|
|
|
|
|
|
“Without being brought in to answer but by due process of the common
|
|
|
|
|
law.
|
|
|
|
|
|
|
|
|
|
“No man be put to answer without presentment before justices, or thing
|
|
|
|
|
of record, or by due process, or by writ original, _according to the old
|
|
|
|
|
law of the land_.”—_2 Inst._ 50.
|
|
|
|
|
|
|
|
|
|
The foregoing interpretations of the words _nisi per legem terræ_ are
|
|
|
|
|
corroborated by the following statutes, enacted in the next century
|
|
|
|
|
after Magna Carta.
|
|
|
|
|
|
|
|
|
|
“That no man, from henceforth, shall be attached by any accusation, nor
|
|
|
|
|
forejudged of life or limb, nor his land, tenements, goods, nor
|
|
|
|
|
chattels, seized into the king’s hands, against the form of the Great
|
|
|
|
|
Charter, _and the law of the land_.”—_St. 5 Edward III., Ch._ 9.
|
|
|
|
|
(1331.)
|
|
|
|
|
|
|
|
|
|
“Whereas it is contained in the Great Charter of the franchises of
|
|
|
|
|
England, that none shall be imprisoned, nor put out of his freehold, nor
|
|
|
|
|
of his franchises, nor free customs, _unless it be by the law of the
|
|
|
|
|
land_; it is accorded, assented, and established, that from henceforth
|
|
|
|
|
none shall be taken by petition, or suggestion made to our lord the
|
|
|
|
|
king, or to his council, _unless it be by indictment or presentment of
|
|
|
|
|
good and lawful people of the same neighborhood where such deeds be done
|
|
|
|
|
in due manner, or by process made by writ original at the common law_;
|
|
|
|
|
nor that none be put out of his franchises, nor of his freehold, _unless
|
|
|
|
|
he be duly brought into answer, and forejudged of the same by the course
|
|
|
|
|
of the law_; and if anything be done against the same, it shall be
|
|
|
|
|
redressed and holden for none.”—_St. 25 Edward III., Ch._ 4. (1350.)
|
|
|
|
|
|
|
|
|
|
“That no man, of what estate or condition that he be, shall be put out
|
|
|
|
|
of land or tenement, nor taken, nor imprisoned, nor disinherited, nor
|
|
|
|
|
put to death, without being brought in answer _by due process of
|
|
|
|
|
law_.”—_St. 28 Edward III., Ch._ 3. (1354.)
|
|
|
|
|
|
|
|
|
|
“That no man be put to answer without presentment before justices, or
|
|
|
|
|
matter of record, or by due process and writ original, according to the
|
|
|
|
|
_old law of the land_. And if anything from henceforth be done to the
|
|
|
|
|
contrary, it shall be void in law, and holden for error.”—_St. 42
|
|
|
|
|
Edward III., Ch._ 3. (1368.)
|
|
|
|
|
|
|
|
|
|
The foregoing interpretation of the words _nisi per legem terræ_—that
|
|
|
|
|
is, _by due process of law_—including indictment, &c., has been adopted
|
|
|
|
|
as the true one by modern writers and courts; as, for example, by Kent,
|
|
|
|
|
(2 _Comm._ 13,) Story, (3 _Comm._ 661,) and the Supreme Court of New
|
|
|
|
|
York, (19 _Wendell_, 676; 4 _Hill_, 146.)
|
|
|
|
|
|
|
|
|
|
The fifth amendment to the constitution of the United States seems to
|
|
|
|
|
have been framed on the same idea, inasmuch as it provides that “no
|
|
|
|
|
person shall be deprived of life, liberty, or property, _without due
|
|
|
|
|
process of law_.”[^31]
|
|
|
|
|
|
|
|
|
|
_Whether the word_ VEL _should be rendered by_ OR, _or by_ AND.
|
|
|
|
|
|
|
|
|
|
Having thus given the meanings, or rather the applications, which the
|
|
|
|
|
words _vel per legem terræ_ will reasonably, and perhaps must
|
|
|
|
|
necessarily, bear, it is proper to suggest, that it has been supposed by
|
|
|
|
|
some that the word _vel_, instead of being rendered by _or_, as it
|
|
|
|
|
usually is, ought to be rendered by _and_, inasmuch as the word _vel_ is
|
|
|
|
|
often used for _et_, and the whole phrase _nisi per judicium parium
|
|
|
|
|
suorum, vel per legem terræ_, (which would then read, unless by the
|
|
|
|
|
sentence of his peers, _and_ the law of the land,) would convey a more
|
|
|
|
|
intelligible and harmonious meaning than it otherwise does.
|
|
|
|
|
|
|
|
|
|
Blackstone suggests that this may be the true reading. (_Charters_, p.
|
|
|
|
|
41.) Also Mr. Hallam, who says:
|
|
|
|
|
|
|
|
|
|
> “Nisi per legale judicium parium suorum, _vel_ per legem terræ.
|
|
|
|
|
> Several explanations have been offered of the alternative clause;
|
|
|
|
|
> which some have referred to judgment by default, or demurrer; others
|
|
|
|
|
> to the process of attachment for contempt. Certainly there are many
|
|
|
|
|
> legal procedures besides trial by jury, through which a party’s goods
|
|
|
|
|
> or person may be taken. But one may doubt whether these were in
|
|
|
|
|
> contemplation of the framers of Magna Carta. In an entry of the
|
|
|
|
|
> Charter of 1217 by a contemporary hand, preserved in the Town-clerk’s
|
|
|
|
|
> office in London, called Liber Custumarum et Regum antiquarum, a
|
|
|
|
|
> various reading, _et_ per legem terræ, occurs. _Blackstone’s
|
|
|
|
|
> Charters_, p. 42 (41.) And the word _vel_ is so frequently used for
|
|
|
|
|
> _et_, that I am not wholly free from a suspicion that it was so
|
|
|
|
|
> intended in this place. The meaning will be, that no person shall be
|
|
|
|
|
> disseized, &c., except upon a lawful cause of action, found by the
|
|
|
|
|
> verdict of a jury. This really seems as good as any of the
|
|
|
|
|
> disjunctive interpretations; but I do not offer it with much
|
|
|
|
|
> confidence.”—2 _Hallam’s Middle Ages, Ch._ 8, _Part_ 2, p. 449,
|
|
|
|
|
> _note_.[^32]
|
|
|
|
|
|
|
|
|
|
The idea that the word _vel_ should be rendered by _and_, is
|
|
|
|
|
corroborated, if not absolutely confirmed, by the following passage in
|
|
|
|
|
Blackstone, which has before been cited. Speaking of the trial by jury,
|
|
|
|
|
as established by Magna Carta, he calls it,
|
|
|
|
|
|
|
|
|
|
> “A privilege which is couched in almost the same words with that of
|
|
|
|
|
> the Emperor Conrad two hundred years before: ‘nemo beneficium suum
|
|
|
|
|
> perdat, nisi secundum consuetudinem antecessorum nostrorum, _et_
|
|
|
|
|
> judicium parium suorum.’” (No one shall lose his estate unless
|
|
|
|
|
> according to the custom of our ancestors, and the judgment of his
|
|
|
|
|
> peers.)—_3 Blackstone_, 350.
|
|
|
|
|
|
|
|
|
|
If the word _vel_ be rendered by _and_, (as I think it must be, at least
|
|
|
|
|
in some cases,) this chapter of Magna Carta will then read that no
|
|
|
|
|
freeman shall be arrested or punished, “unless according to the sentence
|
|
|
|
|
of his peers, _and_ the law of the land.”
|
|
|
|
|
|
|
|
|
|
The difference between this reading and the other is important. In the
|
|
|
|
|
one case, there would be, at first view, some color of ground for saying
|
|
|
|
|
that a man might be punished in either of two ways, viz., according to
|
|
|
|
|
the sentence of his peers, _or_ according to the law of the land. In the
|
|
|
|
|
other case, it requires both the sentence of his peers _and_ the law of
|
|
|
|
|
the land (common law) to authorize his punishment.
|
|
|
|
|
|
|
|
|
|
If this latter reading be adopted, the provision would seem to exclude
|
|
|
|
|
all trials except trial by jury, and all causes of action except those
|
|
|
|
|
of the _common law_.
|
|
|
|
|
|
|
|
|
|
But I apprehend the word vel must be rendered both by _and_, and by
|
|
|
|
|
_or_; that in cases of a _judgment_, it should be rendered by _and_, so
|
|
|
|
|
as to require the concurrence both of “the judgment of the peers _and_
|
|
|
|
|
the law of the land,” to authorize the king to make execution upon a
|
|
|
|
|
party’s goods or person; but that in cases of arrest and imprisonment,
|
|
|
|
|
simply for the purpose of bringing a man to trial, _vel_ should be
|
|
|
|
|
rendered by or, because there can have been no judgment of a jury in
|
|
|
|
|
such a case, and “the law of the land” must therefore necessarily be the
|
|
|
|
|
only guide to, and restraint upon, the king. If this guide and restraint
|
|
|
|
|
were taken away, the king would be invested with an arbitrary and most
|
|
|
|
|
dangerous power in making arrests, and confining in prison, under
|
|
|
|
|
pretence of an intention to bring to trial.
|
|
|
|
|
|
|
|
|
|
Having thus examined the language of this chapter of Magna Carta, so far
|
|
|
|
|
as it relates to criminal cases, its legal import may be stated as
|
|
|
|
|
follows, viz.:
|
|
|
|
|
|
|
|
|
|
No freeman shall be arrested, or imprisoned, or deprived of his
|
|
|
|
|
freehold, or his liberties, or free customs, or be outlawed, or exiled,
|
|
|
|
|
or in any manner destroyed, (harmed,) nor will we (the king) proceed
|
|
|
|
|
against him, nor send any one against him, by force or arms, unless
|
|
|
|
|
according to (that is, in execution of) the sentence of his peers, _and_
|
|
|
|
|
(or _or_, as the case may require) the Common Law of England, (as it was
|
|
|
|
|
at the time of Magna Carta, in 1215.)
|
|
|
|
|
|
2023-08-04 00:46:41 +00:00
|
|
|
|
[^5]: 1 Hume, Appendix 2.
|
|
|
|
|
|
|
|
|
|
[^6]: Crabbe’s History of the English Law, 236.
|
|
|
|
|
|
|
|
|
|
[^7]: Coke says, “The king of England is armed with divers
|
|
|
|
|
councils, one whereof is called _commune concilium_, (the common
|
|
|
|
|
council,) and that is the court of parliament, and so it is _legally_
|
|
|
|
|
called in writs and judicial proceedings _commune concilium regni
|
|
|
|
|
Angliæ_, (the common council of the kingdom of England.) And another is
|
|
|
|
|
called _magnum concilium_, (great council;) this is sometimes applied to
|
|
|
|
|
the upper house of parliament, and sometimes, out of parliament time, to
|
|
|
|
|
the peers of the realm, lords of parliament, who are called _magnum
|
|
|
|
|
concilium regis_, (the great council of the king;) * * Thirdly, (as
|
|
|
|
|
every man knoweth,) the king hath a privy council for matters of state.
|
|
|
|
|
* * The fourth council of the king are his judges for law matters.”
|
|
|
|
|
|
|
|
|
|
_1 Coke’s Institutes, 110 a._
|
|
|
|
|
|
|
|
|
|
[^8]: The Great Charter of Henry III., (1216 and 1225,) confirmed
|
|
|
|
|
by Edward I., (1297,) makes no provision whatever for, or mention of, a
|
|
|
|
|
parliament, unless the provision, (Ch. 37,) that “Escuage, (a military
|
|
|
|
|
contribution,) from henceforth shall be taken like as it was wont to be
|
|
|
|
|
in the time of King Henry our grandfather,” mean that a parliament shall
|
|
|
|
|
be summoned for that purpose.
|
|
|
|
|
|
|
|
|
|
[^9]: The Magna Carta of John, (Ch. 17 and 18,) defines those who
|
|
|
|
|
were entitled to be summoned to parliament, to wit, “The Archbishops,
|
|
|
|
|
Bishops, Abbots, Earls, and Great Barons of the Realm, * * and all
|
|
|
|
|
others who hold of us _in chief_.” Those who held land of the king _in
|
|
|
|
|
chief_ included none below the rank of knights.
|
|
|
|
|
|
|
|
|
|
[^10]: The parliaments of that time were, doubtless, such as
|
|
|
|
|
Carlyle describes them, when he says, “The parliament was at first a
|
|
|
|
|
most simple assemblage, quite cognate to the situation; that Red
|
|
|
|
|
William, or whoever had taken on him the terrible task of being King of
|
|
|
|
|
England, was wont to invite, oftenest about Christmas time, his
|
|
|
|
|
subordinate Kinglets, Barons as he called them, to give him the pleasure
|
|
|
|
|
of their company for a week or two; there, in earnest conference all
|
|
|
|
|
morning, in freer talk over Christmas cheer all evening, in some big
|
|
|
|
|
royal hall of Westminster, Winchester, or wherever it might be, with log
|
|
|
|
|
fires, huge rounds of roast and boiled, not lacking malmsey and other
|
|
|
|
|
generous liquor, they took counsel concerning the arduous matters of the
|
|
|
|
|
kingdom.”
|
|
|
|
|
|
|
|
|
|
[^11]: Hume, Appendix 2.
|
|
|
|
|
|
|
|
|
|
[^12]: This point will be more fully established hereafter.
|
|
|
|
|
|
|
|
|
|
[^13]: It is plain that the king and all his partisans looked
|
|
|
|
|
upon the charter as utterly prostrating the king’s legislative supremacy
|
|
|
|
|
before the discretion of juries. When the schedule of liberties demanded
|
|
|
|
|
by the barons was shown to him, (of which the trial by jury was the most
|
|
|
|
|
important, because it was the only one that protected all the rest,)
|
|
|
|
|
“the king, falling into a violent passion, asked, _Why the barons did
|
|
|
|
|
not with these exactions demand his kingdom?_ * * _and with a solemn
|
|
|
|
|
oath protested, that he would never grant such liberties as would make
|
|
|
|
|
himself a slave_.” * * But afterwards, “seeing himself deserted, and
|
|
|
|
|
fearing they would seize his castles, he sent the Earl of Pembroke and
|
|
|
|
|
other faithful messengers to them, to let them know _he would grant them
|
|
|
|
|
the laws and liberties they desired_.” * * But after the charter had
|
|
|
|
|
been granted, “the king’s mercenary soldiers, desiring war more than
|
|
|
|
|
peace, were by their leaders continually whispering in his ears, _that
|
|
|
|
|
he was now no longer king, but the scorn of other princes; and that it
|
|
|
|
|
was more eligible to be no king, than such a one as he_.” * * He applied
|
|
|
|
|
“to the Pope, that he might by his apostolic authority make void what
|
|
|
|
|
the barons had done. * * At Rome he met with what success he could
|
|
|
|
|
desire, where all the transactions with the barons were fully
|
|
|
|
|
represented to the Pope, and the Charter of Liberties shown to him, in
|
|
|
|
|
writing; which, when he had carefully perused, he, with a furious look,
|
|
|
|
|
cried out, _What! Do the barons of England endeavor to dethrone a king,
|
|
|
|
|
who has taken upon him the Holy Cross, and is under the protection of
|
|
|
|
|
the Apostolic See; and would they force him to transfer the dominions of
|
|
|
|
|
the Roman Church to others? By St. Peter, this injury must not pass
|
|
|
|
|
unpunished._ Then debating the matter with the cardinals, he, by a
|
|
|
|
|
definitive sentence, damned and cassated forever the Charter of
|
|
|
|
|
Liberties, and sent the king a bull containing that sentence at
|
|
|
|
|
large.”—_Echard’s History of England_, p. 106-7.
|
|
|
|
|
|
|
|
|
|
These things show that the nature and effect of the charter were well
|
|
|
|
|
understood by the king and his friends; that they all agreed that he was
|
|
|
|
|
effectually stripped of power. _Yet the legislative power had not been
|
|
|
|
|
taken from him; but only the power to enforce his laws, unless juries
|
|
|
|
|
should freely consent to their enforcement._
|
|
|
|
|
|
|
|
|
|
[^14]: The laws were, at that time, all written in Latin.
|
|
|
|
|
|
|
|
|
|
[^15]: “No man shall be condemned at the king’s suit, either
|
|
|
|
|
before the king in his bench, where pleas are _coram rege_, (before the
|
|
|
|
|
king,) (and so are the words _nec super eum ibimus_, to be understood,)
|
|
|
|
|
nor before any other commissioner or judge whatsoever, and so are the
|
|
|
|
|
words _nec super eum mittemus_, to be understood, but by the judgment of
|
|
|
|
|
his peers, that is, equals, or according to the law of the land.”—_2
|
|
|
|
|
Coke’s Inst._, 46.
|
|
|
|
|
|
|
|
|
|
[^16]: Perhaps the assertion in the text should be made with this
|
|
|
|
|
qualification—that the words “_per legem terræ_,” (according to the law
|
|
|
|
|
of the land,) and the words “_per legale judicium parium suorum_,”
|
|
|
|
|
(according to the _legal_ judgment of his peers,) imply that the king,
|
|
|
|
|
before proceeding to any _executive_ action, will take notice of “the
|
|
|
|
|
law of the land,” and of the _legality_ of the judgment of the peers,
|
|
|
|
|
and will _execute_ upon the prisoner nothing except what the law of the
|
|
|
|
|
land authorizes, and no judgments of the peers, except _legal_ ones.
|
|
|
|
|
With this qualification, the assertion in the text is strictly
|
|
|
|
|
correct—that there is nothing in the whole chapter that grants to the
|
|
|
|
|
king, or his judges, any _judicial_ power at all. The chapter only
|
|
|
|
|
describes and _limits_ his _executive_ power.
|
|
|
|
|
|
|
|
|
|
[^17]: See Blackstone’s Law Tracts, page 294, Oxford Edition.
|
|
|
|
|
|
|
|
|
|
[^18]: These Articles of the Charter are given in Blackstone’s
|
|
|
|
|
collection of Charters, and are also printed with the _Statutes of the
|
|
|
|
|
Realm_. Also in Wilkins’ Laws of the Anglo-Saxons, p. 356.
|
|
|
|
|
|
|
|
|
|
[^19]: Lingard says, “The words, ‘_We will not destroy him, nor
|
|
|
|
|
will we go upon him, nor will we send upon him_,’ have been very
|
|
|
|
|
differently expounded by different legal authorities. Their real meaning
|
|
|
|
|
may be learned from John himself, who the next year promised by his
|
|
|
|
|
letters patent ... nec super eos _per vim vel per arma_ ibimus, nisi per
|
|
|
|
|
legem regni nostri, vel per judicium parium suorum in curia nostra, (nor
|
|
|
|
|
will we go upon them _by force or by arms_, unless by the law of our
|
|
|
|
|
kingdom, or the judgment of their peers in our court.) Pat. 16 Johan,
|
|
|
|
|
apud Drad. 11, app. no. 124. He had hitherto been in the habit of
|
|
|
|
|
_going_ with an armed force, or _sending_ an armed force on the lands,
|
|
|
|
|
and against the castles, of all whom he knew or suspected to be his
|
|
|
|
|
secret enemies, without observing any form of law.”—3 Lingard, 47
|
|
|
|
|
note.
|
|
|
|
|
|
|
|
|
|
[^20]: “_Judgment, judicium._ * * The sentence of the law,
|
|
|
|
|
pronounced by the court, upon the matter contained in the record.”—3
|
|
|
|
|
_Blackstone_, 395. _Jacob’s Law Dictionary. Tomlin’s do._
|
|
|
|
|
|
|
|
|
|
“_Judgment_ is the decision or sentence of the law, given by a court of
|
|
|
|
|
justice or other competent tribunal, as the result of the proceedings
|
|
|
|
|
instituted therein, for the redress of an injury.”—_Bouvier’s Law
|
|
|
|
|
Dict._
|
|
|
|
|
|
|
|
|
|
“_Judgment, judicium._ * * Sentence of a judge against a criminal. * *
|
|
|
|
|
Determination, decision in general.”—_Bailey’s Dict._
|
|
|
|
|
|
|
|
|
|
“_Judgment._ * * In a legal sense, a sentence or decision pronounced by
|
|
|
|
|
authority of a king, or other power, either by their own mouth, or by
|
|
|
|
|
that of their judges and officers, whom they appoint to administer
|
|
|
|
|
justice in their stead.”—_Chambers’ Dict._
|
|
|
|
|
|
|
|
|
|
“_Judgment._ * * In law, the sentence or doom pronounced in any case,
|
|
|
|
|
civil or criminal, by the judge or court by which it is
|
|
|
|
|
tried.”—_Webster’s Dict._
|
|
|
|
|
|
|
|
|
|
Sometimes the punishment itself is called _judicium_, _judgment_; or,
|
|
|
|
|
rather, it was at the time of Magna Carta. For example, in a statute
|
|
|
|
|
passed fifty-one years after Magna Carta, it was said that a baker, for
|
|
|
|
|
default in the weight of his bread, “debeat amerciari vel subire
|
|
|
|
|
_judicium_ pillorie;” that is, ought to be amerced, or suffer the
|
|
|
|
|
punishment, or judgment, of the pillory. Also that a brewer, for
|
|
|
|
|
“selling ale contrary to the assize,” “debeat amerciari, vel pati
|
|
|
|
|
_judicium_ tumbrelli”; that is, ought to be amerced, or suffer the
|
|
|
|
|
punishment, or judgment, of the tumbrel.—51 _Henry_ 3, _St._ 6. (1266.)
|
|
|
|
|
|
|
|
|
|
Also the “_Statutes of uncertain date_,” (but supposed to be prior to
|
|
|
|
|
Edward III., or 1326,) provide, in chapters 6, 7, and 10, for
|
|
|
|
|
“_judgment_ of the pillory.”—_See 1 Ruffhead’s Statutes_, 187, 188. 1
|
|
|
|
|
_Statutes of the Realm_, 203.
|
|
|
|
|
|
|
|
|
|
Blackstone, in his chapter “Of _Judgment_, and its Consequences,” says,
|
|
|
|
|
|
|
|
|
|
“_Judgment_ (unless any matter be offered in arrest thereof) follows
|
|
|
|
|
upon conviction; being the pronouncing of that punishment which is
|
|
|
|
|
expressly ordained by law.”—_Blackstone’s Analysis of the Laws of
|
|
|
|
|
England, Book 4, Ch. 29, Sec. 1. Blackstone’s Law Tracts_, 126.
|
|
|
|
|
|
|
|
|
|
Coke says, “_Judicium_ ... the judgment is the guide and direction of
|
|
|
|
|
the execution.” 3 _Inst._ 210.
|
|
|
|
|
|
|
|
|
|
[^21]: This precedent from Germany is good authority, because the
|
|
|
|
|
trial by jury was in use, in the northern nations of Europe generally,
|
|
|
|
|
long before Magna Carta, and probably from time immemorial; and the
|
|
|
|
|
Saxons and Normans were familiar with it before they settled in
|
|
|
|
|
England.
|
|
|
|
|
|
|
|
|
|
[^22]: _Beneficium_ was the legal name of an estate held by a
|
|
|
|
|
feudal tenure. See Spelman’s Glossary.
|
|
|
|
|
|
|
|
|
|
[^23]: _Contenement_ of a freeman was the means of living in the
|
|
|
|
|
condition of a freeman.
|
|
|
|
|
|
|
|
|
|
[^24]: _Waynage_ was a villein’s plough-tackle and carts.
|
|
|
|
|
|
|
|
|
|
[^25]: Tomlin says, “The ancient practice was, when any such fine
|
|
|
|
|
was imposed, to inquire by a jury _quantum inde regi dare valeat per
|
|
|
|
|
annum, salva sustentatione sua et uxoris et liberorum suorum_, (how much
|
|
|
|
|
is he able to give to the king per annum, saving his own maintenance,
|
|
|
|
|
and that of his wife and children). And since the disuse of such
|
|
|
|
|
inquest, it is never usual to assess a larger fine than a man is able to
|
|
|
|
|
pay, without touching the implements of his livelihood; but to inflict
|
|
|
|
|
corporal punishment, or a limited imprisonment, instead of such a fine
|
|
|
|
|
as might amount to imprisonment for life. And this is the reason why
|
|
|
|
|
fines in the king’s courts are frequently denominated ransoms, because
|
|
|
|
|
the penalty must otherwise fall upon a man’s person, unless it be
|
|
|
|
|
redeemed or ransomed by a pecuniary fine.”—_Tomlin’s Law Dict., word
|
|
|
|
|
Fine._
|
|
|
|
|
|
|
|
|
|
[^26]: Because juries were to fix the sentence, it must not be
|
|
|
|
|
supposed that the king was _obliged_ to carry the sentence into
|
|
|
|
|
execution; _but only that he could not go beyond the sentence_. He might
|
|
|
|
|
pardon, or he might acquit on grounds of law, notwithstanding the
|
|
|
|
|
sentence; but he could not punish beyond the extent of the sentence.
|
|
|
|
|
Magna Carta does not prescribe that the king _shall punish_ according to
|
|
|
|
|
the sentence of the peers; but only that he shall not punish _“unless
|
|
|
|
|
according to” that sentence_. He may acquit or pardon, notwithstanding
|
|
|
|
|
their sentence or judgment; but he cannot punish, except according to
|
|
|
|
|
their judgment.
|
|
|
|
|
|
|
|
|
|
[^27]: _The trial by battle_ was one in which the accused
|
|
|
|
|
challenged his accuser to single combat, and staked the question of his
|
|
|
|
|
guilt or innocence on the result of the duel. This trial was introduced
|
|
|
|
|
into England by the Normans, within one hundred and fifty years before
|
|
|
|
|
Magna Carta. It was not very often resorted to even by the Normans
|
|
|
|
|
themselves; probably never by the Anglo-Saxons, unless in their
|
|
|
|
|
controversies with the Normans. It was strongly discouraged by some of
|
|
|
|
|
the Norman princes, particularly by Henry II., by whom the trial by jury
|
|
|
|
|
was especially favored. It is probable that the trial by battle, so far
|
|
|
|
|
as it prevailed at all in England, was rather tolerated as a matter of
|
|
|
|
|
chivalry, than authorized as a matter of law. At any rate, it is not
|
|
|
|
|
likely that it was included in the “_legem terræ_” of Magna Carta,
|
|
|
|
|
although such duels have occasionally occurred since that time, and
|
|
|
|
|
have, by some, been supposed to be lawful. I apprehend that nothing can
|
|
|
|
|
be properly said to be a part of _lex terræ_, unless it can be shown
|
|
|
|
|
either to have been of Saxon origin, or to have been recognized by Magna
|
|
|
|
|
Carta.
|
|
|
|
|
|
|
|
|
|
_The trial by ordeal_ was of various kinds. In one ordeal the accused
|
|
|
|
|
was required to take hot iron in his hand; in another to walk blindfold
|
|
|
|
|
among red-hot ploughshares; in another to thrust his arm into boiling
|
|
|
|
|
water; in another to be thrown, with his hands and feet bound, into cold
|
|
|
|
|
water; in another to swallow the _morsel of execration_; in the
|
|
|
|
|
confidence that his guilt or innocence would be miraculously made known.
|
|
|
|
|
This mode of trial was nearly extinct at the time of Magna Carta, and it
|
|
|
|
|
is not likely that it was included in “_legem terræ_,” as that term is
|
|
|
|
|
used in that instrument. This idea is corroborated by the fact that the
|
|
|
|
|
trial by ordeal was specially prohibited only four years after Magna
|
|
|
|
|
Carta, “by act of Parliament in 3 Henry III., according to Sir Edward
|
|
|
|
|
Coke, or rather by an order of the king in council.”—_3 Blackstone_
|
|
|
|
|
345, _note_.
|
|
|
|
|
|
|
|
|
|
I apprehend that this trial was never forced upon accused persons, but
|
|
|
|
|
was only allowed to them, _as an appeal to God_, from the judgment of a
|
|
|
|
|
jury.[^33]
|
|
|
|
|
|
|
|
|
|
_The trial by compurgators_ was one in which, if the accused could bring
|
|
|
|
|
twelve of his neighbors, who would make oath that they believed him
|
|
|
|
|
innocent, he was held to be so. It is probable that this trial was
|
|
|
|
|
really the trial by jury, or was allowed as an appeal from a jury. It is
|
|
|
|
|
wholly improbable that two different modes of trial, so nearly
|
|
|
|
|
resembling each other as this and the trial by jury do, should prevail
|
|
|
|
|
at the same time, and among a rude people, whose judicial proceedings
|
|
|
|
|
would naturally be of the simplest kind. But if this trial really were
|
|
|
|
|
any other than the trial by jury, it must have been nearly or quite
|
|
|
|
|
extinct at the time of Magna Carta; and there is no probability that it
|
|
|
|
|
was included in “_legem terræ_.”
|
|
|
|
|
|
|
|
|
|
[^28]: Coke attempts to show that there is a distinction between
|
|
|
|
|
amercements and fines—admitting that amercements must be fixed by one’s
|
|
|
|
|
peers, but claiming that fines may be fixed by the government. (_2
|
|
|
|
|
Inst._ 27, _8 Coke’s Reports_ 38.) But there seems to have been no
|
|
|
|
|
ground whatever for supposing that any such distinction existed at the
|
|
|
|
|
time of Magna Carta. If there were any such distinction in the time of
|
|
|
|
|
Coke, it had doubtless grown up within the four centuries that had
|
|
|
|
|
elapsed since Magna Carta, and is to be set down as one of the
|
|
|
|
|
numberless inventions of government for getting rid of the restraints of
|
|
|
|
|
Magna Carta, and for taking men out of the protection of their peers,
|
|
|
|
|
and subjecting them to such punishments as the government chooses to
|
|
|
|
|
inflict.
|
|
|
|
|
|
|
|
|
|
The first statute of Westminster, passed sixty years after Magna Carta,
|
|
|
|
|
treats the fine and amercement as synonymous, as follows:
|
|
|
|
|
|
|
|
|
|
“Forasmuch as _the common fine and amercement_ of the whole county in
|
|
|
|
|
Eyre of the justices for false judgments, or for other trespass, is
|
|
|
|
|
unjustly assessed by sheriffs and baretors in the shires, * * it is
|
|
|
|
|
provided, and the king wills, that from henceforth such sums shall be
|
|
|
|
|
assessed before the justices in Eyre, afore their departure, _by the
|
|
|
|
|
oath of knights and other honest men_,” &c.—_3 Edward I., Ch._ 18.
|
|
|
|
|
(1275.)
|
|
|
|
|
|
|
|
|
|
And in many other statutes passed after Magna Carta, the terms _fine_
|
|
|
|
|
and _amercement_ seem to be used indifferently, in prescribing the
|
|
|
|
|
punishment for offences. As late as 1461, (246 years after Magna Carta,)
|
|
|
|
|
the statute _1 Edward IV., Ch._ 2, speaks of “_fines, ransoms, and
|
|
|
|
|
amerciaments_” as being levied upon criminals, as if they were the
|
|
|
|
|
common punishments of offences.
|
|
|
|
|
|
|
|
|
|
_St._ 2 and 3 _Philip and Mary, Ch._ 8, uses the terms, “_fines,
|
|
|
|
|
forfeitures, and amerciaments_” five times. (1555.)
|
|
|
|
|
|
|
|
|
|
_St. 5 Elizabeth, Ch._ 13, _Sec._ 10, uses the terms “_fines,
|
|
|
|
|
forfeitures, and amerciaments_.”
|
|
|
|
|
|
|
|
|
|
That amercements were fines, or pecuniary punishments, inflicted for
|
|
|
|
|
offences, is proved by the following statutes, (all supposed to have
|
|
|
|
|
been passed within one hundred and fifteen years after Magna Carta,)
|
|
|
|
|
which speak of amercements as a species of “_judgment_,” or punishment,
|
|
|
|
|
and as being inflicted for the same offences as other “judgments.”
|
|
|
|
|
|
|
|
|
|
Thus one statute declares that a baker, for default in the weight of his
|
|
|
|
|
bread, “ought to be _amerced_, or suffer the _judgment_ of the pillory;”
|
|
|
|
|
and that a brewer, for “selling ale contrary to the assize,” “ought to
|
|
|
|
|
be _amerced_, or suffer the _judgment_ of the tumbrel.”—_51 Henry III.,
|
|
|
|
|
St._ 6. (1266.)
|
|
|
|
|
|
|
|
|
|
Among the “_Statutes of Uncertain Date_,” but supposed to be prior to
|
|
|
|
|
Edward III., (1326,) are the following:
|
|
|
|
|
|
|
|
|
|
_Chap._ 6 provides that “if a brewer break the assize, (fixing the price
|
|
|
|
|
of ale,) the first, second, and third time, he shall be _amerced_; but
|
|
|
|
|
the fourth time he shall suffer _judgment_ of the pillory without
|
|
|
|
|
redemption.”
|
|
|
|
|
|
|
|
|
|
_Chap._ 7 provides that “a butcher that selleth swine’s flesh measled,
|
|
|
|
|
or flesh dead of the murrain, or that buyeth flesh of Jews, and selleth
|
|
|
|
|
the same unto Christians, after he shall be convict thereof, for the
|
|
|
|
|
first time he shall be grievously _amerced_; the second time he shall
|
|
|
|
|
suffer _judgment_ of the pillory; and the third time he shall be
|
|
|
|
|
imprisoned and make _fine_; and the fourth time he shall forswear the
|
|
|
|
|
town.”
|
|
|
|
|
|
|
|
|
|
_Chap. 10_, a statute against _forestalling_, provides that,
|
|
|
|
|
|
|
|
|
|
“He that is convict thereof, the first time shall be _amerced_, and
|
|
|
|
|
shall lose the thing so bought, and that according to the custom of the
|
|
|
|
|
town; he that is convicted the second time shall have _judgment_ of the
|
|
|
|
|
pillory; at the third time he shall be imprisoned and make _fine_; the
|
|
|
|
|
fourth time he shall abjure the town. And this _judgment_ shall be given
|
|
|
|
|
upon all manner of forestallers, and likewise upon them that have given
|
|
|
|
|
them counsel, help, or favor.”—_1 Ruffhead’s Statutes_, 187, 188. _1
|
|
|
|
|
Statutes of the Realm_, 203.
|
|
|
|
|
|
|
|
|
|
[^29]: 1 Hume, Appendix, 1.
|
|
|
|
|
|
|
|
|
|
[^30]: Blackstone says, “Our ancient Saxon laws nominally
|
|
|
|
|
punished theft with death, if above the value of twelve pence; but the
|
|
|
|
|
criminal was permitted to redeem his life by a pecuniary ransom, as
|
|
|
|
|
among their ancestors, the Germans, by a stated number of cattle. But in
|
|
|
|
|
the ninth year of Henry the First, (1109,) this power of redemption was
|
|
|
|
|
taken away, and all persons guilty of larceny above the value of twelve
|
|
|
|
|
pence were directed to be hanged, which law continues in force to this
|
|
|
|
|
day.”—_4 Blackstone_, 238.
|
|
|
|
|
|
|
|
|
|
I give this statement of Blackstone, because the latter clause may seem
|
|
|
|
|
to militate with the idea, which the former clause corroborates, viz.,
|
|
|
|
|
that at the time of Magna Carta, fines were the usual punishments of
|
|
|
|
|
offences. But I think there is no probability that a law so unreasonable
|
|
|
|
|
in itself, (unreasonable even after making all allowance for the
|
|
|
|
|
difference in the value of money,) and so contrary to immemorial custom,
|
|
|
|
|
could or did obtain any general or speedy acquiescence among a people
|
|
|
|
|
who cared little for the authority of kings.
|
|
|
|
|
|
|
|
|
|
Maddox, writing of the period from William the Conqueror to John, says:
|
|
|
|
|
|
|
|
|
|
“The amercements in criminal and common pleas, which were wont to be
|
|
|
|
|
imposed during this first period and afterwards, were of so many several
|
|
|
|
|
sorts, that it is not easy to place them under distinct heads. Let them,
|
|
|
|
|
for method’s sake, be reduced to the heads following: Amercements for or
|
|
|
|
|
by reason of murders and manslaughters, for misdemeanors, for
|
|
|
|
|
disseisins, for recreancy, for breach of assize, for defaults, for
|
|
|
|
|
non-appearance, for false judgment, and for not making suit, or hue and
|
|
|
|
|
cry. To them may be added miscellaneous amercements, for trespasses of
|
|
|
|
|
divers kinds.”—_1 Maddox’ History of the Exchequer_, 542.
|
|
|
|
|
|
|
|
|
|
[^31]: Coke, in his exposition of the words _legem terræ_, gives
|
|
|
|
|
quite in detail the principles of the common law governing _arrests_;
|
|
|
|
|
and takes it for granted that the words “_nisi per legem terræ_” are
|
|
|
|
|
applicable to arrests, as well as to the indictment, &c.—2 _Inst._,
|
|
|
|
|
51,52.
|
|
|
|
|
|
|
|
|
|
[^32]: I cite the above extract from Mr. Hallam solely for the
|
|
|
|
|
sake of his authority for rendering the word _vel_ by _and_; and not by
|
|
|
|
|
any means for the purpose of indorsing the opinion he suggests, that
|
|
|
|
|
_legem terræ_ authorized “judgments by default or demurrer,” _without
|
|
|
|
|
the intervention of a jury_. He seems to imagine that _lex terræ_, the
|
|
|
|
|
common law, at the time of Magna Carta, included everything, even to the
|
|
|
|
|
practice of courts, that is, _at this day_, called by the name of
|
|
|
|
|
_Common Law_; whereas much of what is _now_ called Common Law has grown
|
|
|
|
|
up, by usurpation, since the time of Magna Carta, in palpable violation
|
|
|
|
|
of the authority of that charter. He says, “Certainly there are many
|
|
|
|
|
legal procedures, besides _trial_ by jury, through which a party’s goods
|
|
|
|
|
or person may be taken.” Of course there are _now_ many such ways, in
|
|
|
|
|
which a party’s goods or person _are_ taken, besides by the judgment of
|
|
|
|
|
a jury; but the question is, whether such takings are not in violation
|
|
|
|
|
of Magna Carta.
|
|
|
|
|
|
|
|
|
|
He seems to think that, in cases of “judgment by default or demurrer,”
|
|
|
|
|
there is no need of a jury, and thence to infer that _legem terræ_ may
|
|
|
|
|
not have required a jury in those cases. But this opinion is founded on
|
|
|
|
|
the erroneous idea that juries are required only for determining
|
|
|
|
|
contested _facts_, and not for judging of the law. In case of default,
|
|
|
|
|
the plaintiff must present a _prima facie_ case before he is entitled to
|
|
|
|
|
a judgment; and Magna Carta, (supposing it to require a jury trial in
|
|
|
|
|
civil cases, as Mr. Hallam assumes that it does,) as much requires that
|
|
|
|
|
this _prima facie_ case, both law and fact, be made out to the
|
|
|
|
|
satisfaction of a jury, as it does that a contested case shall be.
|
|
|
|
|
|
|
|
|
|
As for a demurrer, the jury must try a demurrer (having the advice and
|
|
|
|
|
assistance of the court, of course) as much as any other matter of law
|
|
|
|
|
arising in a case.
|
|
|
|
|
|
|
|
|
|
Mr. Hallam evidently thinks there is no use for a jury, except where
|
|
|
|
|
there is a “_trial_”—meaning thereby a contest on matters of _fact_.
|
|
|
|
|
His language is, that “there are many legal procedures, besides _trial_
|
|
|
|
|
by jury, through which a party’s goods or person may be taken.” Now
|
|
|
|
|
Magna Carta says nothing of _trial_ by jury; but only of the _judgment_,
|
|
|
|
|
or sentence, of a jury. It is only _by inference_ that we come to the
|
|
|
|
|
conclusion that there must be a _trial_ by jury. Since the jury alone
|
|
|
|
|
can give the _judgment_, or _sentence_, we _infer_ that they must _try_
|
|
|
|
|
the case; because otherwise they would be incompetent, and would have no
|
|
|
|
|
moral right, to give _judgment_. They must, therefore, examine the
|
|
|
|
|
grounds, (both of law and fact,) or rather _try_ the grounds, of every
|
|
|
|
|
action whatsoever, whether it be decided on “default, demurrer,” or
|
|
|
|
|
otherwise, and render their judgment, or sentence, thereon, before any
|
|
|
|
|
judgment can be a legal one, on which “to take a party’s goods or
|
|
|
|
|
person.” In short, the principle of Magna Carta is, that no judgment can
|
|
|
|
|
be valid _against a party’s goods or person_, (not even a judgment for
|
|
|
|
|
costs,) except a judgment rendered by a jury. Of course a jury must try
|
|
|
|
|
every question, both of law and fact, that is involved in the rendering
|
|
|
|
|
of that judgment. They are to have the assistance and advice of the
|
|
|
|
|
judges, so far as they desire them; but the judgment itself must be
|
|
|
|
|
theirs, and not the judgment of the court.
|
|
|
|
|
|
|
|
|
|
As to “process of attachment for contempt,” it is of course lawful for a
|
|
|
|
|
judge, in his character of a peace officer, to issue a warrant for the
|
|
|
|
|
arrest of a man guilty of a contempt, as he would for the arrest of any
|
|
|
|
|
other offender, and hold him to bail, (or, in default of bail, commit
|
|
|
|
|
him to prison,) to answer for his offence before a jury. Or he may order
|
|
|
|
|
him into custody without a warrant when the offence is committed in the
|
|
|
|
|
judge’s presence. But there is no reason why a judge should have the
|
|
|
|
|
power of _punishing_ for contempt, any more than for any other offence.
|
|
|
|
|
And it is one of the most dangerous powers a judge can have, because it
|
|
|
|
|
gives him absolute authority in a court of justice, and enables him to
|
|
|
|
|
tyrannize as he pleases over parties, counsel, witnesses, and jurors. If
|
|
|
|
|
a judge have power to punish for contempt, and to determine for himself
|
|
|
|
|
what is a contempt, the whole administration of justice (or injustice,
|
|
|
|
|
if he choose to make it so) is in his hands. And all the rights of
|
|
|
|
|
jurors, witnesses, counsel, and parties, are held subject to his
|
|
|
|
|
pleasure, and can be exercised only agreeably to his will. He can of
|
|
|
|
|
course control the entire proceedings in, and consequently the decision
|
|
|
|
|
of, every cause, by restraining and punishing every one, whether party,
|
|
|
|
|
counsel, witness, or juror, who presumes to offer anything contrary to
|
|
|
|
|
his pleasure.
|
|
|
|
|
|
|
|
|
|
This arbitrary power, which has been usurped and exercised by judges to
|
|
|
|
|
punish for contempt, has undoubtedly had much to do in subduing counsel
|
|
|
|
|
into those servile, obsequious, and cowardly habits, which so
|
|
|
|
|
universally prevail among them, and which have not only cost so many
|
|
|
|
|
clients their rights, but have also cost the people so many of their
|
|
|
|
|
liberties.
|
|
|
|
|
|
|
|
|
|
If any _summary_ punishment for contempt be ever necessary, (as it
|
|
|
|
|
probably is not,) beyond exclusion for the time being from the
|
|
|
|
|
court-room, (which should be done, not as a punishment, but for
|
|
|
|
|
self-protection, and the preservation of order,) the judgment for it
|
|
|
|
|
should be given by the jury, (where the trial is before a jury,) and not
|
|
|
|
|
by the court, for the jury, and not the court, are really the judges.
|
|
|
|
|
For the same reason, exclusion from the court-room should be ordered
|
|
|
|
|
only by the jury, in cases when the trial is before a jury, because
|
|
|
|
|
they, being the real judges and triers of the cause, are entitled, if
|
|
|
|
|
anybody, to the control of the court-room. In appeal courts, where no
|
|
|
|
|
juries sit, it may be necessary—not as a punishment, but for
|
|
|
|
|
self-protection, and the maintenance of order—that the court should
|
|
|
|
|
exercise the power of excluding a person, for the time being, from the
|
|
|
|
|
court-room; but there is no reason why they should proceed to sentence
|
|
|
|
|
him as a criminal, without his being tried by a jury.
|
|
|
|
|
|
|
|
|
|
If the people wish to have their rights respected and protected in
|
|
|
|
|
courts of justice, it is manifestly of the last importance that they
|
|
|
|
|
jealously guard the liberty of parties, counsel, witnesses, and jurors,
|
|
|
|
|
against all arbitrary power on the part of the court.
|
|
|
|
|
|
|
|
|
|
Certainly Mr. Hallam may very well say that “one may doubt whether these
|
|
|
|
|
(the several cases he has mentioned) were in contemplation of the
|
|
|
|
|
framers of Magna Carta”—that is, as exceptions to the rule requiring
|
|
|
|
|
that all judgments, that are to be enforced “_against a party’s goods or
|
|
|
|
|
person_,” be rendered by a jury.
|
|
|
|
|
|
|
|
|
|
Again, Mr. Hallam says, if the word _vel_ be rendered by _and_, “the
|
|
|
|
|
meaning will be, that no person shall be disseized, &c., _except upon a
|
|
|
|
|
lawful cause of action_.” This is true; but it does not follow that any
|
|
|
|
|
cause of action, founded on _statute only_, is therefore a “_lawful_
|
|
|
|
|
cause of action,” within the meaning of _legem terræ_, or the _Common
|
|
|
|
|
Law_. Within the meaning of the _legem terræ_ of Magna Carta, nothing
|
|
|
|
|
but a _common law_ cause of action is a “_lawful_” one.
|
|
|
|
|
|
|
|
|
|
[^33]: Hallam says, “It appears as if the ordeal were permitted
|
|
|
|
|
to persons already convicted by this verdict of a jury.”—_2 Middle
|
|
|
|
|
Ages_, 446, _note_.
|