From 9414c90788f0a82213c60854880ef8dcbe8a038d Mon Sep 17 00:00:00 2001 From: Brandon Dyck Date: Sat, 5 Aug 2023 16:07:50 -0600 Subject: [PATCH] Don't keep edited markdown files --- edited/.gitignore | 1 + edited/01.markdown | 605 --------- edited/02.markdown | 1388 ------------------- edited/03.markdown | 2793 -------------------------------------- edited/04.markdown | 557 -------- edited/05.markdown | 754 ---------- edited/06.markdown | 687 ---------- edited/07.markdown | 842 ------------ edited/08.markdown | 213 --- edited/09.markdown | 429 ------ edited/10.markdown | 98 -- edited/11.markdown | 627 --------- edited/12.markdown | 568 -------- edited/appendix.markdown | 125 -- edited/note.markdown | 19 - 15 files changed, 1 insertion(+), 9705 deletions(-) create mode 100644 edited/.gitignore delete mode 100644 edited/01.markdown delete mode 100644 edited/02.markdown delete mode 100644 edited/03.markdown delete mode 100644 edited/04.markdown delete mode 100644 edited/05.markdown delete mode 100644 edited/06.markdown delete mode 100644 edited/07.markdown delete mode 100644 edited/08.markdown delete mode 100644 edited/09.markdown delete mode 100644 edited/10.markdown delete mode 100644 edited/11.markdown delete mode 100644 edited/12.markdown delete mode 100644 edited/appendix.markdown delete mode 100644 edited/note.markdown diff --git a/edited/.gitignore b/edited/.gitignore new file mode 100644 index 0000000..b722e9e --- /dev/null +++ b/edited/.gitignore @@ -0,0 +1 @@ +!.gitignore \ No newline at end of file diff --git a/edited/01.markdown b/edited/01.markdown deleted file mode 100644 index 6465a38..0000000 --- a/edited/01.markdown +++ /dev/null @@ -1,605 +0,0 @@ -# THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS - - -\section{} - -For more than six hundred years—that is, since Magna Carta, in -1215—there has been no clearer principle of English or American -constitutional law, than that, in criminal cases, it is not only the -right and duty of juries to judge what are the facts, what is the law, -and what was the moral intent of the accused; _but that it is also their -right, and their primary and paramount duty, to judge of the justice of -the law, and to hold all laws invalid, that are, in their opinion, -unjust or oppressive, and all persons guiltless in violating, or -resisting the execution of, such laws_. - -Unless such be the right and duty of jurors, it is plain that, instead -of juries being a “palladium of liberty”—a barrier against the tyranny -and oppression of the government—they are really mere tools in its -hands, for carrying into execution any injustice and oppression it may -desire to have executed. - -But for their right to judge of the law, _and the justice of the law_, -juries would be no protection to an accused person, _even as to matters -of fact_; for, if the government can dictate to a jury any law whatever, -in a criminal case, it can certainly dictate to them the laws of -evidence. That is, it can dictate what evidence is admissible, and what -inadmissible, _and also what force or weight is to be given to the -evidence admitted_. And if the government can thus dictate to a jury the -laws of evidence, it can not only make it necessary for them to convict -on a partial exhibition of the evidence rightfully pertaining to the -case, but it can even require them to convict on any evidence whatever -that it pleases to offer them. - -That the rights and duties of jurors must necessarily be such as are -here claimed for them, will be evident when it is considered what the -trial by jury is, and what is its object. - -_“The trial by jury,” then, is a “trial by the country”—that is, by the -people—as distinguished from a trial by the government._ - -It was anciently called “trial _per pais_”—that is, “trial by the -country.” And now, in every criminal trial, the jury are told that the -accused “has, for trial, put himself upon the _country_; which _country_ -you (the jury) are.” - -_The object of this trial “by the country” or by the people, in -preference to a trial by the government, is to guard against every -species of oppression by the government. In order to effect this end, it -is indispensable that the people, or “the country,” judge of and -determine their own liberties against the government; instead of the -government’s judging of and determining its own powers over the people. -How is it possible that juries can do anything to protect the liberties -of the people against the government, if they are not allowed to -determine what those liberties are?_ - -Any government, that is its own judge of, and determines authoritatively -for the people, what are its own powers over the people, is an absolute -government of course. It has all the powers that it chooses to exercise. -There is no other—or at least no more accurate—definition of a -despotism than this. - -On the other hand, any people, that judge of, and determine -authoritatively for the government, what are their own liberties against -the government, of course retain all the liberties they wish to enjoy. -_And this is freedom._ At least, it is freedom _to them_; because, -although it may be theoretically imperfect, it, nevertheless, -corresponds to _their_ highest notions of freedom. - -To secure this right of the people to judge of their own liberties -against the government, the jurors are taken, (or must be, to make them -lawful jurors,) from the body of the people, _by lot_, or by some -process that precludes any previous knowledge, choice, or selection of -them, on the part of the government. This is done to prevent the -government’s constituting a jury of its own partisans or friends; in -other words, to prevent the government’s _packing_ a jury, with a view -to maintain its own laws, and accomplish its own purposes. - -It is supposed that, if twelve men be taken, _by lot_, from the mass of -the people, without the possibility of any previous knowledge, choice, -or selection of them, on the part of the government, the jury will be a -fair epitome of “the country” at large, and not merely of the party or -faction that sustain the measures of the government; that substantially -all classes of opinions, prevailing among the people, will be -represented in the jury; and especially that the opponents of the -government, (if the government have any opponents,) will be represented -there, as well as its friends; that the classes, who are oppressed by -the laws of the government, (if any are thus oppressed,) will have their -representatives in the jury, as well as those classes, who take sides -with the oppressor—that is, with the government. - -It is fairly presumable that such a tribunal will agree to no conviction -except such as _substantially the whole country_ would agree to, if they -were present, taking part in the trial. A trial by such a tribunal is, -therefore, in effect, “a trial by the country.” In its results it -probably comes as near to a trial by the _whole_ country, as any trial -that it is practicable to have, without too great inconvenience and -expense. And as unanimity is required for a conviction, it follows that -no one can be convicted, except for the violation of such laws as -substantially the whole country wish to have maintained. The government -can enforce none of its laws, (by punishing offenders, through the -verdicts of juries,) except such as substantially the whole people wish -to have enforced. The government, therefore, consistently with the trial -by jury, can exercise no powers over the people, (or, what is the same -thing, over the accused person, who represents the rights of the -people,) except such as substantially the whole people of the country -consent that it may exercise. In such a trial, therefore, “the country,” -or the people, judge of and determine their own liberties against the -government, instead of the government’s judging of and determining its -own powers over the people. - -But all this “trial by the country” would be no trial at all “by the -country,” but only a trial by the government, if the government could -either declare who may, and who may not, be jurors, or could dictate to -the jury anything whatever, either of law or evidence, that is of the -essence of the trial. - -If the government may decide who may, and who may not, be jurors, it -will of course select only its partisans, and those friendly to its -measures. It may not only prescribe who may, and who may not, be -eligible to be drawn as jurors; but it may also question each person -drawn as a juror, as to his sentiments in regard to the particular law -involved in each trial, before suffering him to be sworn on the panel; -and exclude him if he be found unfavorable to the maintenance of such a -law.[^1] - -So, also, if the government may dictate to the jury _what laws they are -to enforce_, it is no longer a “trial by the country,” but a trial by -the government; because the jury then try the accused, not by any -standard of their own—not by their own judgments of their rightful -liberties—but by a standard dictated to them by the government. And the -standard, thus dictated by the government, becomes the measure of the -people’s liberties. If the government dictate the standard of trial, it -of course dictates the results of the trial. And such a trial is no -trial by the country, but only a trial by the government; and in it the -government determines what are its own powers over the people, instead -of the people’s determining what are their own liberties against the -government. In short, if the jury have no right to judge of the justice -of a law of the government, they plainly can do nothing to protect the -people against the oppressions of the government; for there are no -oppressions which the government may not authorize by law. - -The jury are also to judge whether the laws are rightly expounded to -them by the court. Unless they judge on this point, they do nothing to -protect their liberties against the oppressions that are capable of -being practised under cover of a corrupt exposition of the laws. If the -judiciary can authoritatively dictate to a jury any exposition of the -law, they can dictate to them the law itself, and such laws as they -please; because laws are, in practice, one thing or another, according -as they are expounded. - -The jury must also judge whether there really be any such law, (be it -good or bad,) as the accused is charged with having transgressed. Unless -they judge on this point, the people are liable to have their liberties -taken from them by brute force, without any law at all. - -The jury must also judge of the laws of evidence. If the government can -dictate to a jury the laws of evidence, it can not only shut out any -evidence it pleases, tending to vindicate the accused, but it can -require that any evidence whatever, that it pleases to offer, be held as -conclusive proof of any offence whatever which the government chooses to -allege. - -It is manifest, therefore, that the jury must judge of and try the whole -case, and every part and parcel of the case, free of any dictation or -authority on the part of the government. They must judge of the -existence of the law; of the true exposition of the law; _of the justice -of the law_; and of the admissibility and weight of all the evidence -offered; otherwise the government will have everything its own way; the -jury will be mere puppets in the hands of the government; and the trial -will be, in reality, a trial by the government, and not a “trial by the -country.” By such trials the government will determine its own powers -over the people, instead of the people’s determining their own liberties -against the government; and it will be an entire delusion to talk, as -for centuries we have done, of the trial by jury, as a “palladium of -liberty,” or as any protection to the people against the oppression and -tyranny of the government. - -The question, then, between trial by jury, as thus described, and trial -by the government, is simply a question between liberty and despotism. -The authority to judge what are the powers of the government, and what -the liberties of the people, must necessarily be vested in one or the -other of the parties themselves—the government, or the people; because -there is no third party to whom it can be entrusted. If the authority be -vested in the government, the government is absolute, and the people -have no liberties except such as the government sees fit to indulge them -with. If, on the other hand, that authority be vested in the people, -then the people have all liberties, (as against the government,) except -such as substantially the whole people (through a jury) choose to -disclaim; and the government can exercise no power except such as -substantially the whole people (through a jury) consent that it may -exercise. - - -\section{} - -The force and justice of the preceding argument cannot be evaded by -saying that the government is chosen by the people; that, in theory, it -represents the people; that it is designed to do the will of the people; -that its members are all sworn to observe the fundamental or -constitutional law instituted by the people; that its acts are therefore -entitled to be considered the acts of the people; and that to allow a -jury, representing the people, to invalidate the acts of the government, -would therefore be arraying the people against themselves. - -There are two answers to such an argument. - -One answer is, that, in a representative government, there is no -absurdity or contradiction, nor any arraying of the people against -themselves, in requiring that the statutes or enactments of the -government shall pass the ordeal of any number of separate tribunals, -before it shall be determined that they are to have the force of laws. -Our American constitutions have provided five of these separate -tribunals, to wit, representatives, senate, executive,[^2] jury, and -judges; and have made it necessary that each enactment shall pass the -ordeal of all these separate tribunals, before its authority can be -established by the punishment of those who choose to transgress it. And -there is no more absurdity or inconsistency in making a jury one of -these several tribunals, than there is in making the representatives, or -the senate, or the executive, or the judges, one of them. There is no -more absurdity in giving a jury a veto upon the laws, than there is in -giving a veto to each of these other tribunals. The people are no more -arrayed against themselves, when a jury puts its veto upon a statute, -which the other tribunals have sanctioned, than they are when the same -veto is exercised by the representatives, the senate, the executive, or -the judges. - -But another answer to the argument that the people are arrayed against -themselves, when a jury hold an enactment of the government invalid, is, -that the government, and all the departments of the government, _are -merely the servants and agents of the people_; not invested with -arbitrary or absolute authority to bind the people, but required to -submit all their enactments to the judgment of a tribunal more fairly -representing the whole people, before they carry them into execution, by -punishing any individual for transgressing them. If the government were -not thus required to submit their enactments to the judgment of “the -country,” before executing them upon individuals—if, in other words, -the people had reserved to themselves no veto upon the acts of the -government, the government, instead of being a mere servant and agent of -the people, would be an absolute despot over the people. It would have -all power in its own hands; because the power to _punish_ carries all -other powers with it. A power that can, of itself, and by its own -authority, punish disobedience, can compel obedience and submission, and -is above all responsibility for the character of its laws. In short, it -is a despotism. - -And it is of no consequence to inquire how a government came by this -power to punish, whether by prescription, by inheritance, by usurpation, -or by delegation from the people? _If it have now but got it_, the -government is absolute. - -It is plain, therefore, that if the people have invested the government -with power to make laws that absolutely bind the people, and to punish -the people for transgressing those laws, the people have surrendered -their liberties unreservedly into the hands of the government. - -It is of no avail to say, in answer to this view of the case, that in -surrendering their liberties into the hands of the government, the -people took an oath from the government, that it would exercise its -power within certain constitutional limits; for when did oaths ever -restrain a government that was otherwise unrestrained? Or when did a -government fail to determine that all its acts were within the -constitutional and authorized limits of its power, if it were permitted -to determine that question for itself? - -Neither is it of any avail to say, that, if the government abuse its -power, and enact unjust and oppressive laws, the government may be -changed by the influence of discussion, and the exercise of the right of -suffrage. Discussion can do nothing to prevent the enactment, or procure -the repeal, of unjust laws, unless it be understood that the discussion -is to be followed by resistance. Tyrants care nothing for discussions -that are to end only in discussion. Discussions, which do not interfere -with the enforcement of their laws, are but idle wind to them. Suffrage -is equally powerless and unreliable. It can be exercised only -periodically; and the tyranny must at least be borne until the time for -suffrage comes. Besides, when the suffrage is exercised, it gives no -guaranty for the repeal of existing laws that are oppressive, and no -security against the enactment of new ones that are equally so. The -second body of legislators are liable and likely to be just as -tyrannical as the first. If it be said that the second body may be -chosen for their integrity, the answer is, that the first were chosen -for that very reason, and yet proved tyrants. The second will be exposed -to the same temptations as the first, and will be just as likely to -prove tyrannical. Who ever heard that succeeding legislatures were, on -the whole, more honest than those that preceded them? What is there in -the nature of men or things to make them so? If it be said that the first -body were chosen from motives of injustice, that fact proves that there is -a portion of society who desire to establish injustice; and if they were -powerful or artful enough to procure the election of their instruments to -compose the first legislature, they will be likely to be powerful or -artful enough to procure the election of the same or similar instruments -to compose the second. The right of suffrage, therefore, and even a change -of legislators, guarantees no change of legislation—certainly no change -for the better. Even if a change for the better actually comes, it comes -too late, because it comes only after more or less injustice has been -irreparably done. - -But, at best, the right of suffrage can be exercised only periodically; -and between the periods the legislators are wholly irresponsible. No -despot was ever more entirely irresponsible than are republican -legislators during the period for which they are chosen. They can -neither be removed from their office, nor called to account while in -their office, nor punished after they leave their office, be their -tyranny what it may. Moreover, the judicial and executive departments of -the government are equally irresponsible _to the people_, and are only -responsible, (by impeachment, and dependence for their salaries), to -these irresponsible legislators. This dependence of the judiciary and -executive upon the legislature is a guaranty that they will always -sanction and execute its laws, whether just or unjust. Thus the -legislators hold the whole power of the government in their hands, and -are at the same time utterly irresponsible for the manner in which they -use it. - -If, now, this government, (the three branches thus really united in -one), can determine the validity of, and enforce, its own laws, it is, -for the time being, entirely absolute, and wholly irresponsible to the -people. - -But this is not all. These legislators, and this government, so -irresponsible while in power, can perpetuate their power at pleasure, if -they can determine what legislation is authoritative upon the people, -and can enforce obedience to it; for they can not only declare their -power perpetual, but they can enforce submission to all legislation that -is necessary to secure its perpetuity. They can, for example, prohibit -all discussion of the rightfulness of their authority; forbid the use of -the suffrage; prevent the election of any successors; disarm, plunder, -imprison, and even kill all who refuse submission. If, therefore, the -government (all departments united) be absolute for a day—that is, if -it can, for a day, enforce obedience to its own laws—it can, in that -day, secure its power for all time—like the queen, who wished to reign -but for a day, but in that day caused the king, her husband, to be -slain, and usurped his throne. - -Nor will it avail to say that such acts would be unconstitutional, and -that unconstitutional acts may be lawfully resisted; for everything a -government pleases to do will, of course, be determined to be -constitutional, if the government itself be permitted to determine the -question of the constitutionality of its own acts. Those who are capable -of tyranny, are capable of perjury to sustain it. - -The conclusion, therefore, is, that any government, that can, _for a -day_, enforce its own laws, without appealing to the people, (or to a -tribunal fairly representing the people,) for their consent, is, in -theory, an absolute government, irresponsible to the people, and can -perpetuate its power at pleasure. - -The trial by jury is based upon a recognition of this principle, and -therefore forbids the government to execute any of its laws, by -punishing violators, in any case whatever, without first getting the -consent of “the country,” or the people, through a jury. In this way, -the people, at all times, hold their liberties in their own hands, and -never surrender them, even for a moment, into the hands of the -government. - -The trial by jury, then, gives to any and every individual the liberty, -at any time, to disregard or resist any law whatever of the government, -if he be willing to submit to the decision of a jury, the questions, -whether the law be intrinsically just and obligatory? and whether his -conduct, in disregarding or resisting it, were right in itself? And any -law, which does not, in such trial, obtain the unanimous sanction of -twelve men, taken at random from the people, and judging according to -the standard of justice in their own minds, free from all dictation and -authority of the government, may be transgressed and resisted with -impunity, by whomsoever pleases to transgress or resist it.[^3] - -The trial by jury authorizes all this, or it is a sham and a hoax, -utterly worthless for protecting the people against oppression. If it do -not authorize an individual to resist the first and least act of -injustice or tyranny, on the part of the government, it does not -authorize him to resist the last and the greatest. If it do not -authorize individuals to nip tyranny in the bud, it does not authorize -them to cut it down when its branches are filled with the ripe fruits of -plunder and oppression. - -Those who deny the right of a jury to protect an individual in resisting -an unjust law of the government, deny him all _legal_ defence -whatsoever against oppression. The right of revolution, which tyrants, -in mockery, accord to mankind, is no _legal_ right _under_ a government; -it is only a _natural_ right to overturn a government. The government -itself never acknowledges this right. And the right is practically -established only when and because the government no longer exists to -call it in question. The right, therefore, can be exercised with -impunity, only when it is exercised victoriously. All _unsuccessful_ -attempts at revolution, however justifiable in themselves, are punished -as treason, if the government be permitted to judge of the treason. The -government itself never admits the injustice of its laws, as a legal -defence for those who have attempted a revolution, and failed. The right -of revolution, therefore, is a right of no practical value, except for -those who are stronger than the government. So long, therefore, as the -oppressions of a government are kept within such limits as simply not to -exasperate against it a power greater than its own, the right of -revolution cannot be appealed to, and is therefore inapplicable to the -case. This affords a wide field for tyranny; and if a jury cannot _here_ -intervene, the oppressed are utterly defenceless. - -It is manifest that the only security against the tyranny of the -government lies in forcible resistance to the execution of the -injustice; because the injustice will certainly be executed, _unless it -be forcibly resisted_. And if it be but suffered to be executed, it must -then be borne; for the government never makes compensation for its own -wrongs. - -Since, then, this forcible resistance to the injustice of the government -is the only possible means of preserving liberty, it is indispensable to -all _legal_ liberty that this _resistance_ should be _legalized_. It is -perfectly self-evident that where there is no _legal_ right to resist -the oppression of the government, there can be no _legal_ liberty. And -here it is all-important to notice, that, _practically speaking_, there -can be no _legal_ right to resist the oppressions of the government, -unless there be some _legal_ tribunal, other than the government, and -wholly independent of, and _above_, the government, to judge between the -government and those who resist its oppressions; in other words, to -judge what laws of the government are to be obeyed, and what may be -resisted and held for nought. The only tribunal known to our laws, for -this purpose, is a jury. If a jury have not the right to judge between -the government and those who disobey its laws, and resist its -oppressions, the government is absolute, and the people, _legally -speaking_, are slaves. Like many other slaves they may have sufficient -courage and strength to keep their masters somewhat in check; but they -are nevertheless _known to the law_ only as slaves. - -That this right of resistance was recognized as a common law right, when -the ancient and genuine trial by jury was in force, is not only proved -by the nature of the trial itself, but is acknowledged by history.[^4] - -This right of resistance is recognized by the constitution of the United -States, as a strictly legal and constitutional right. It is so -recognized, first by the provision that “the trial of all crimes, except -in cases of impeachment, shall be by jury”—that is, by the country—and -not by the government; secondly, by the provision that “the right of the -people to keep and bear arms shall not be infringed.” This -constitutional security for “the right to keep and bear arms,” implies -the right to use them—as much as a constitutional security for the -right to buy and keep food would have implied the right to eat it. The -constitution, therefore, takes it for granted that the people will -judge of the conduct of the government, and that, as they have the -right, they will also have the sense, to use arms, whenever the -necessity of the case justifies it. And it is a sufficient and _legal_ -defence for a person accused of using arms against the government, if he -can show, to the satisfaction of a jury, _or even any one of a jury_, -that the law he resisted was an unjust one. - -In the American _State_ constitutions also, this right of resistance to -the oppressions of the government is recognized, in various ways, as a -natural, legal, and constitutional right. In the first place, it is so -recognized by provisions establishing the trial by jury; thus requiring -that accused persons shall be tried by “the country,” instead of the -government. In the second place, it is recognized by many of them, as, -for example, those of Massachusetts, Maine, Vermont, Connecticut, -Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas, -Mississippi, Alabama, and Florida, by provisions expressly declaring -that the people shall have the right to bear arms. In many of them also, -as, for example, those of Maine, New Hampshire, Vermont, Massachusetts, -New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida, -Iowa, and Arkansas, by provisions, in their bills of rights, declaring -that men have a natural, inherent, and inalienable right of “_defending_ -their lives and liberties.” This, of course, means that they have a -right to defend them against any injustice _on the part of the -government_, and not merely on the part of private individuals; because -the object of all bills of rights is to assert the rights of individuals -and the people, _as against the government_, and not as against private -persons. It would be a matter of ridiculous supererogation to assert, in -a constitution of government, the natural right of men to defend their -lives and liberties against private trespassers. - -Many of these bills of rights also assert the natural right of all men -to protect their property—that is, to protect it _against the -government_. It would be unnecessary and silly indeed to assert, in a -constitution of government, the natural right of individuals to protect -their property against thieves and robbers. - -The constitutions of New Hampshire and Tennessee also declare that “The -doctrine of non-resistance against arbitrary power and oppression is -absurd, slavish, and destructive of the good and happiness of mankind.” - -The legal effect of these constitutional recognitions of the right of -individuals to defend their property, liberties, and lives, against the -government, is to legalize resistance to all injustice and oppression, -of every name and nature whatsoever, on the part of the government. - -But for this right of resistance, on the part of the people, all -governments would become tyrannical to a degree of which few people are -aware. Constitutions are utterly worthless to restrain the tyranny of -governments, unless it be understood that the people will, by force, -compel the government to keep within the constitutional limits. -Practically speaking, no government knows any limits to its power, -except the endurance of the people. But that the people are stronger -than the government, and will resist in extreme cases, our governments -would be little or nothing else than organized systems of plunder and -oppression. All, or nearly all, the advantage there is in fixing any -constitutional limits to the power of a government, is simply to give -notice to the government of the point at which it will meet with -resistance. If the people are then as good as their word, they may keep -the government within the bounds they have set for it; otherwise it will -disregard them—as is proved by the example of all our American -governments, in which the constitutions have all become obsolete, at the -moment of their adoption, for nearly or quite all purposes except the -appointment of officers, who at once become practically absolute, except -so far as they are restrained by the fear of popular resistance. - -The bounds set to the power of the government, by the trial by jury, as -will hereafter be shown, are these—that the government shall never -touch the property, person, or natural or civil rights of an individual, -against his consent, (except for the purpose of bringing them before a -jury for trial,) unless in pursuance and _execution_ of a judgment, or -decree, rendered by a jury in each individual case, upon such evidence, -and such law, as are satisfactory to their own understandings and -consciences, irrespective of all legislation of the government. - -[^1]: To show that this supposition is not an extravagant one, it - may be mentioned that courts have repeatedly questioned jurors to - ascertain whether they were prejudiced _against the government_—that - is, whether they were in favor of, or opposed to, such laws of the - government as were to be put in issue in the then pending trial. This - was done (in 1851) in the United States District Court for the District - of Massachusetts, by Peleg Sprague, the United States district judge, in - empanelling three several juries for the trials of Scott, Hayden, and - Morris, charged with having aided in the rescue of a fugitive slave from - the custody of the United States deputy marshal. This judge caused the - following question to be propounded to all the jurors separately; and - those who answered unfavorably for the purposes of the government, were - excluded from the panel. - - > “Do you hold any opinions upon the subject of the Fugitive Slave Law, - > so called, which will induce you to refuse to convict a person - > indicted under it, if the facts set forth in the indictment, _and - > constituting the offence_, are proved against him, and the court - > direct you that the law is constitutional?” - - The reason of this question was, that “the Fugitive Slave Law, so - called,” was so obnoxious to a large portion of the people, as to render - a conviction under it hopeless, if the jurors were taken - indiscriminately from among the people. - - A similar question was soon afterwards propounded to the persons drawn - as jurors in the United States _Circuit_ Court for the District of - Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme - Court of the United States, in empanelling a jury for the trial of the - aforesaid Morris on the charge before mentioned; and those who did not - answer the question favorably for the government were again excluded - from the panel. - - It has also been an habitual practice with the Supreme Court of - Massachusetts, in empanelling juries for the trial of _capital_ - offences, to inquire of the persons drawn as jurors whether they had any - conscientious scruples against finding verdicts of guilty in such cases; - that is, whether they had any conscientious scruples against sustaining - the law prescribing death as the punishment of the crime to be tried; - and to exclude from the panel all who answered in the affirmative. - - The only principle upon which these questions are asked, is this—that - no man shall be allowed to serve as juror, unless he be ready to enforce - any enactment of the government, however cruel or tyrannical it may be. - - What is such a jury good for, as a protection against the tyranny of the - government? A jury like that is palpably nothing but a mere tool of - oppression in the hands of the government. A trial by such a jury is - really a trial by the government itself—and not a trial by the - country—because it is a trial only by men specially selected by the - government for their readiness to enforce its own tyrannical measures. - - If that be the true principle of the trial by jury, the trial is utterly - worthless as a security to liberty. The Czar might, with perfect safety - to his authority, introduce the trial by jury into Russia, if he could - but be permitted to select his jurors from those who were ready to - maintain his laws, without regard to their injustice. - - This example is sufficient to show that the very pith of the trial by - jury, as a safeguard to liberty, consists in the jurors being taken - indiscriminately from the whole people, and in their right to hold - invalid all laws which they think unjust. - -[^2]: The executive has a qualified veto upon the passage of - laws, in most of our governments, and an absolute veto, in all of them, - upon the execution of any laws which he deems unconstitutional; because - his oath to support the constitution (as he understands it) forbids him - to execute any law that he deems unconstitutional. - -[^3]: And if there be so much as a reasonable _doubt_ of the - justice of the laws, the benefit of that doubt must be given to the - defendant, and not to the government. So that the government must keep - its laws _clearly_ within the limits of justice, if it would ask a jury - to enforce them. - -[^4]: _Hallam_ says, “The relation established between a lord and - his vassal by the feudal tenure, far from containing principles of any - servile and implicit obedience, permitted the compact to be dissolved in - case of its violation by either party. This extended as much to the - sovereign as to inferior lords. * * If a vassal was aggrieved, and if - justice was denied him, he sent a defiance, that is, a renunciation of - fealty to the king, and was entitled to enforce redress at the point of - his sword. It then became a contest of strength as between two - independent potentates, and was terminated by treaty, advantageous or - otherwise, according to the fortune of war. * * There remained the - original principle, that allegiance depended conditionally upon good - treatment, and that an appeal might be _lawfully_ made to arms against - an oppressive government. Nor was this, we may be sure, left for extreme - necessity, or thought to require a long-enduring forbearance. In modern - times, a king, compelled by his subjects’ swords to abandon any - pretension, would be supposed to have ceased to reign; and the express - recognition of such a right as that of insurrection has been justly - deemed inconsistent with the majesty of law. But ruder ages had ruder - sentiments. Force was necessary to repel force; and men accustomed to - see the king’s authority defied by a private riot, were not much shocked - when it was resisted in defence of public freedom.”—_3 Middle Ages_, - 240-2. diff --git a/edited/02.markdown b/edited/02.markdown deleted file mode 100644 index 32ca203..0000000 --- a/edited/02.markdown +++ /dev/null @@ -1,1388 +0,0 @@ -# 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.) - -[^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_. diff --git a/edited/03.markdown b/edited/03.markdown deleted file mode 100644 index 47fc254..0000000 --- a/edited/03.markdown +++ /dev/null @@ -1,2793 +0,0 @@ -# ADDITIONAL PROOFS OF THE RIGHTS AND DUTIES OF JURORS - - -If any evidence, extraneous to the history and language of Magna Carta, -were needed to prove that, by that chapter which guaranties the trial by -jury, all was meant that has now been ascribed to it, and _that the -legislation of the king was to be of no authority with the jury beyond -what they chose to allow to it_, and that the juries were to limit the -punishments to be inflicted, we should find that evidence in various -sources, such as the laws, customs, and characters of their ancestors on -the continent, and of the northern Europeans generally; in the -legislation and customs that immediately succeeded Magna Carta; in the -oaths that have at different times been administered to jurors, &c., &c. -This evidence can be exhibited here but partially. To give it all would -require too much space and labor. - - -## Weakness of the Regal Authority - -Hughes, in his preface to his translation of Horne’s “_Mirror of -Justices_,” (a book written in the time of Edward I., 1272 to 1307,) -giving a concise view of the laws of England generally, says: - -> “Although in the Saxon’s time I find the usual words of the acts then -> to have been _edictum_, (edict,) _constitutio_, (statute,) little -> mention being made of the commons, yet I further find that, _tum -> demum leges vim et vigerem habuerunt, cum fuerunt non modo institutæ -> sed firmatæ approbatione communitatis_.” (The laws had force and -> vigor only when they were not only enacted, but confirmed by the -> approval of the community.) - -The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking -“_Of the first Constitutions of the Ancient Kings_:” - -> “Many ordinances were made by many kings, until the time of the king -> that now is (Edward I.); the which ordinances were abused, _or not -> used by many, nor very current_, because they were not put in -> writing, and certainly published.”—_Mirror of Justices_, p. 6. - -Hallam says: - -> “The Franks, Lombards, and Saxons seem alike to have been jealous of -> judicial authority; and averse to surrendering what concerned every -> man’s private right, out of the hands of his neighbors and -> equals.”—_1 Middle Ages_, 271. - -The “judicial authority,” here spoken of, was the authority of the -kings, (who at that time united the office of both legislators and -judges,) and not of a separate department of government, called the -judiciary, like what has existed in more modern times.[^34] - -Hume says: - -> “The government of the Germans, and that of all the northern nations, -> who established themselves on the ruins of Rome, was always extremely -> free; and those fierce people, accustomed to independence and inured -> to arms, _were more guided by persuasion than authority, in the -> submission which they paid to their princes_. The military despotism, -> which had taken place in the Roman empire, and which, previously to -> the irruption of those conquerors, had sunk the genius of men, and -> destroyed every noble principle of science and virtue, was unable to -> resist the vigorous efforts of a free people, and Europe, as from a -> new epoch, rekindled her ancient spirit, and shook off the base -> servitude to arbitrary will and authority under which she had so long -> labored. The free constitutions then established, however impaired by -> the encroachments of succeeding princes, still preserve an air of -> independence and legal administration, which distinguished the -> European nations; and if that part of the globe maintain sentiments -> of liberty, honor, equity, and valor, superior to the rest of -> mankind, it owes these advantages chiefly to the seeds implanted by -> those generous barbarians. - -> “_The Saxons, who subdued Britain, as they enjoyed great liberty in -> their own country, obstinately retained that invaluable possession in -> their new settlement; and they imported into this island the same -> principles of independence, which they had inherited from their -> ancestors. The chieftains, (for such they were, more than kings or -> princes,) who commanded them in those military expeditions, still -> possessed a very limited authority_; and as the Saxons exterminated, -> rather than subdued the ancient inhabitants, they were, indeed, -> transplanted into a new territory, _but preserved unaltered all their -> civil and military institutions_. The language was pure Saxon; even -> the names of places, which often remain while the tongue entirely -> changes, were almost all affixed by the conquerors; the manners and -> customs were wholly German; and the same picture of a fierce and bold -> liberty, which is drawn by the masterly pen of Tacitus, will suit -> those founders of the English government. _The king, so far from -> being invested with arbitrary power, was only considered as the first -> among the citizens; his authority depended more on his personal -> qualities than on his station; he was even so far on a level with the -> people, that a stated price was fixed for his head, and a legal fine -> was levied upon his murderer, which though proportionate to his -> station, and superior to that paid for the life of a subject, was a -> sensible mark of his subordination to the community._”—_1 Hume_, -> _Appendix_, 1. - -Stuart says: - -> “The Saxons brought along with them into Britain their own customs, -> language, and civil institutions. Free in Germany, they renounced not -> their independence, when they had conquered. Proud from victory, and -> with their swords in their hands, would they surrender their -> liberties to a private man? Would temporary leaders, limited in their -> powers, and unprovided in resources, ever think to usurp an authority -> over warriors, who considered themselves as their equals, were -> impatient of control, and attached with devoted zeal to their -> privileges? Or, would they find leisure to form resolutions, or -> opportunities to put them in practice, amidst the tumult and -> confusion of those fierce and bloody wars, which their nations first -> waged with the Britons, and then engaged in among themselves? -> Sufficiently flattered in leading the armies of their countrymen, the -> ambition of commanders could as little suggest such designs, as the -> liberty of the people could submit to them. The conquerors of Britain -> retained their independence; and this island saw itself again in -> that free state in which the Roman arms had discovered it. - -> “The same firmness of character, and generosity of manners, which, in -> general, distinguished the Germans, were possessed in an eminent -> degree by the Saxons; and while we endeavor to unfold their political -> institutions, we must perpetually turn our observation to that -> masterly picture in which the Roman historian has described these -> nations. In the woods of Germany shall we find the principles which -> directed the state of land, in the different kingdoms of Europe; and -> there shall we find the foundation of those ranks of men, and of -> those civil arrangements, which the barbarians everywhere -> established; and which the English alone have had the good fortune, -> or the spirit, to preserve.”—_Stuart on the Constitution of -> England_, p. 59-61. - -> “Kings they (the Germans) respected as the first magistrates of the -> state; but the authority possessed by them was narrow and -> limited.”—_Ditto_, p. 134. - -> “Did he, (the king,) at any time, relax his activity and martial -> ardor, did he employ his abilities to the prejudice of his nation, or -> fancy he was superior to the laws; the same power which raised him to -> honor, humbled and degraded him. The customs and councils of his -> country pointed out to him his duty; and if he infringed on the -> former, or disobeyed the latter, a fierce people set aside his -> authority. * * - -> “His long hair was the only ornament he affected, and to be foremost -> to attack an enemy was his chief distinction. Engaged in every -> hazardous expedition, he was a stranger to repose; and, rivalled by -> half the heroes of his tribe, he could obtain little power. Anxious -> and watchful for the public interest, he felt every moment his -> dependence, and gave proofs of his submission. - -> “He attended the general assembly of his nation, and was allowed the -> privilege to harangue it first; but the arts of persuasion, though -> known and respected by a rude people, were unequally opposed to the -> prejudices and passions of men.”—_Ditto_, p. 135-6. - -> “_The authority of a Saxon monarch was not more considerable. The -> Saxons submitted not to the arbitrary rule of princes. They -> administered an oath to their sovereigns, which bound them to -> acknowledge the laws, and to defend the rights of the church and -> people; and if they forgot this obligation, they forfeited their -> office._ In both countries, a price was affixed on kings, a fine -> expiated their murder, as well as that of the meanest citizen; and -> the smallest violation of ancient usage, or the least step towards -> tyranny, was always dangerous, and often fatal to them.”—_Ditto_, p. -> 139-40. - -> “They were not allowed to impose taxes on the kingdom.”—_Ditto_, p. -> 146. - -> “Like the German monarchs, they deliberated in the general assembly -> of the nation; _but their legislative authority was not much -> respected_; and their assent was considered in no better light than -> as a form. This, however, was their chief prerogative; and they -> employed it to acquire an ascendant in the state. To art and -> insinuation they turned, as their only resource, and flattered a -> people whom they could not awe; but address, and the abilities to -> persuade, were a weak compensation for the absence of real power. - -> “They declared war, it is said, and made peace. In both cases, -> however, they acted as the instruments of the state, and put in -> execution the resolutions which its councils had decreed. If, indeed, -> an enemy had invaded the kingdom, and its glory and its safety were -> concerned, the great lords took the field at the call of their -> sovereign. But had a sovereign declared war against a neighboring -> state, without requiring their advice, or if he meant to revenge by -> arms an insult offered to him by a subject, a haughty and independent -> nobility refused their assistance. These they considered as the -> quarrels of the king, and not of the nation; and in all such -> emergencies he could only be assisted by his retainers and -> dependents.”—_Ditto_, p. 147-8. - -> “Nor must we imagine that the Saxon, any more than the German -> monarchs, succeeded each other in a lineal descent,[^35] or that they -> disposed of the crown at their pleasure. In both countries, the free -> election of the people filled the throne; and their choice was the -> only rule by which princes reigned. The succession, accordingly, of -> their kings was often broken and interrupted, and their depositions -> were frequent and groundless. The will of a prince whom they had long -> respected, and the favor they naturally transferred to his -> descendant, made them often advance him to the royal dignity; but the -> crown of his ancestor he considered as the gift of the people, and -> neither expected nor claimed it as a right.”—_Ditto_, p. 151-3. - -In Germany “It was the business of the great to command in war, and in -peace they distributed justice. * * - -> “The _princes_ in Germany were _earls_ in England. The great -> contended in both countries in the number of their retainers, and in -> that splendor and magnificence which are so alluring to a rude -> people; and though they joined to set bounds to regal power, they -> were often animated against each other with the fiercest hatred. To a -> proud and impatient nobility it seemed little and unsuiting to give -> or accept compositions for the injuries they committed or received; -> and their vassals adopting their resentment and passions, war and -> bloodshed alone could terminate their quarrels. What necessarily -> resulted from their situation in society, was continued as a -> _privilege_; and the great, in both countries, made war, of their -> private authority, on their enemies. The Saxon earls even carried -> their arms against their sovereigns; and, surrounded with retainers, -> or secure in fortresses and castles, they despised their resentment, -> and defied their power. - -> “The judges of the people, they presided in both countries in courts -> of law.[^36] The particular districts over which they exerted their -> authority were marked out in Germany by the council of the state; and -> in England their jurisdiction extended over the fiefs and other -> territories they possessed. All causes, both civil and criminal, were -> tried before them; and they judged, except in cases of the utmost -> importance, without appeal. They were even allowed to grant pardon to -> criminals, and to correct by their clemency the rigors of justice. -> Nor did the sovereign exercise any authority in their lands. In these -> his officers formed no courts, and his _writ_ was disregarded. * * - -> “They had officers, as well as the king, who collected their -> revenues, and added to their greatness; and the inhabitants of their -> lands they distinguished by the name of _subjects_. - -> “But to attend the general assembly of their nation was the chief -> prerogative of the German and Saxon princes; and as they consulted -> the interest of their country, and deliberated concerning matters of -> state, so in the _king’s court_, of which also they were members, -> they assisted to pronounce judgment in the complaints and appeals -> which were lodged in it.”—_Ditto_, p. 158 to 165. - -Henry says: - -> “Nothing can be more evident than this important truth; that our -> Anglo-Saxon kings were not absolute monarchs; but that their powers -> and prerogatives were limited by the laws and customs of the country. -> Our Saxon ancestors had been governed by limited monarchs in their -> native seats on the continent; and there is not the least appearance -> or probability that they relinquished their liberties, and submitted -> to absolute government in their new settlements in this island. It is -> not to be imagined that men, whose reigning passion was the love of -> liberty, would willingly resign it; and their new sovereigns, who had -> been their fellow-soldiers, had certainly no power to compel them to -> such a resignation.”—_3 Henry’s History of Great Britain_, 358. - -> Mackintosh says: “The Saxon chiefs, who were called kings, originally -> acquired power by the same natural causes which have gradually, and -> everywhere, raised a few men above their fellows. They were, -> doubtless, more experienced, more skilful, more brave, or more -> beautiful, than those who followed them. * * A king was powerful in -> war by the lustre of his arms, and the obvious necessity of -> obedience. His influence in peace fluctuated with his personal -> character. In the progress of usage his power became more fixed and -> more limited. * * It would be very unreasonable to suppose that the -> northern Germans who had conquered England, had so far changed their -> characteristic habits from the age of Tacitus, that the victors -> became slaves, and that their generals were converted into -> tyrants.”—_Mackintosh’s Hist. of England, Ch. 2._ _45 Lardner’s Cab. -> Cyc._, 73-4. - -Rapin, in his discourse on the “Origin and Nature of the English -Constitution,” says: - -> “There are but two things the Saxons did not think proper to trust -> their kings with; for being of like passions with other men, they -> might very possibly abuse them; namely, the power of changing the -> laws enacted by consent of king and people; and the power of raising -> taxes at pleasure. From these two articles sprung numberless branches -> concerning the liberty and property of the subject, which the king -> cannot touch, without breaking the constitution, and they are the -> distinguishing character of the English monarchy. The prerogatives of -> the crown, and the rights and privileges of the people, flowing from -> the two fore-mentioned articles, are the ground of all the laws that -> from time to time have been made by unanimous consent of king and -> people. The English government consists in the strict union of the -> king’s prerogatives with the people’s liberties. * * But when kings -> arose, as some there were, that aimed at absolute power, by changing -> the old, and making new laws, at pleasure; by imposing illegal taxes -> on the people; this excellent government being, in a manner, -> dissolved by these destructive measures, confusion and civil wars -> ensued, which some very wrongfully ascribe to the fickle and restless -> temper of the English.”—_Rapin’s Preface to his History of England._ - -Hallam says that among the Saxons, “the royal authority was weak.”—_2 -Middle Ages_, 403. - -But although the king himself had so little authority, that it cannot be -supposed for a moment that his laws were regarded as imperative by the -people, it has nevertheless been claimed, in modern times, by some who -seem determined to find or make a precedent for the present legislative -authority of parliament, that his laws were authoritative, _when -assented to_ by the _Witena-gemote_, or assembly of wise men—that is, -the bishops and barons. But this assembly evidently had no legislative -power whatever. The king would occasionally invite the bishops and -barons to meet him for consultation on public affairs, _simply as a -council_, and not as a legislative body. Such as saw fit to attend, did -so. If they were agreed upon what ought to be done, the king would pass -a law accordingly, and the barons and bishops would then return and -inform the people orally what laws had been passed, and use their -influence with them to induce them to conform to the law of the king, -and the recommendation of the council. And the people no doubt were much -more likely to accept a law of the king, if it had been approved by this -council, than if it had not. But it was still only a law of the king, -which they obeyed or disregarded according to their own notions of -expediency. The numbers who usually attended this council were too small -to admit of the supposition that they had any legislative authority -whatever, to impose laws upon the people against their will. - -Lingard says: - -> “It was necessary that the king should obtain the assent of these -> (the members of the Witena-gemotes) to all legislative enactments; -> _because, without their acquiescence and support, it was impossible -> to carry them into execution_. To many charters (laws) we have the -> signatures of the Witan. _They seldom exceed thirty in number; they -> never amount to sixty._”—_1 Lingard_, 486. - -It is ridiculous to suppose that the assent of such an assembly gave any -_authority_ to the laws of the king, or had any influence in securing -obedience to them, otherwise than by way of persuasion. If this body had -had any real legislative authority, such as is accorded to legislative -bodies of the present day, they would have made themselves at once the -most conspicuous portion of the government, and would have left behind -them abundant evidence of their power, instead of the evidence simply of -their assent to a few laws passed by the king. - -More than this. If this body had had any real legislative authority, -they would have constituted an aristocracy, having, in conjunction with -the king, absolute power over the people. Assembling voluntarily, merely -on the invitation of the king; deputed by nobody but themselves; -representing nobody but themselves; responsible to nobody but -themselves; their legislative authority, if they had had any, would of -necessity have made the government the government of an aristocracy -merely, _and the people slaves, of course_. And this would necessarily -have been the picture that history would have given us of the -Anglo-Saxon government, _and of Anglo-Saxon liberty_. - -The fact that the people had no representation in this assembly, and the -further fact that, through their juries alone, they nevertheless -maintained that noble freedom, the very tradition of which (after the -substance of the thing itself has ceased to exist) has constituted the -greatest pride and glory of the nation to this day, _prove_ that this -assembly exercised no authority which juries of the people acknowledged, -except at their own discretion.[^37] - -There is not a more palpable truth, in the history of the Anglo-Saxon -government, than that stated in the Introduction to Gilbert’s History of -the Common Pleas,[^38] viz., “_that the County and Hundred Courts_,” (to -which should have been added the other courts in which juries sat, the -courts-baron and court-leet,) “_in those times were the real and only -Parliaments of the kingdom_.” And why were they the real and only -parliaments of the kingdom? Solely because, as will be hereafter shown, -the juries in those courts tried causes on their intrinsic merits, -according to their own ideas of justice, irrespective of the laws agreed -upon by kings, priests, and barons; and whatever principles they -uniformly, or perhaps generally, enforced, _and none others_, became -practically the law of the land as matter of course.[^39] - -Finally, on this point. Conclusive proof that the legislation of the -king was of little or no authority, is found in the fact _that the kings -enacted so few laws_. If their laws had been received as authoritative, -in the manner that legislative enactments are at this day, they would -have been making laws continually. Yet the codes of the most celebrated -kings are very small, and were little more than compilations of -immemorial customs. The code of Alfred would not fill twelve pages of -the statute book of Massachusetts, and was little or nothing else than a -compilation of the laws of Moses, and the Saxon customs, evidently -collected from considerations of convenience, rather than enacted on the -principle of authority. The code of Edward the Confessor would not fill -twenty pages of the statute book of Massachusetts, and, says Blackstone, -“seems to have been no more than a new edition, or fresh promulgation of -Alfred’s code, or _dome-book_, with such additions and improvements as -the experience of a century and a half suggested.”—_1 Blackstone_, -66.[^40] - -The Code of William the Conqueror[^41] would fill less than seven pages -of the statute book of Massachusetts; and most of the laws contained in -it are taken from the laws of the preceding kings, and especially of -Edward the Confessor (whose laws William swore to observe); but few of -his own being added. - -The codes of the other Saxon and Norman kings were, as a general rule, -less voluminous even than these that have been named; and probably did -not exceed them in originality.[^42] The Norman princes, from William the -Conqueror to John, I think without exception, bound themselves, and, in -order to maintain their thrones, were obliged to bind themselves, to -observe the ancient laws and customs, in other words, the “_lex terræ_,” -or “_common law_” of the kingdom. Even Magna Carta contains hardly -anything other than this same “_common law_,” with some new securities -for its observance. - -How is this abstinence from legislation, on the part of the ancient -kings, to be accounted for, except on the supposition that the people -would accept, and juries enforce, few or no new laws enacted by their -kings? Plainly it can be accounted for in no other way. In fact, all -history informs us that anciently the attempts of the kings to introduce -or establish new laws, met with determined resistance from the people, -and generally resulted in failure. “_Nolumus Leges Angliæ mutari_,” (we -will that the laws of England be not changed,) was a determined -principle with the Anglo-Saxons, from which they seldom departed, up to -the time of Magna Carta, and indeed until long after.[^43] - - -## The Ancient Common Law Juries were mere Courts of Conscience - -But it is in the administration of justice, or of law, that the freedom -or subjection of a people is tested. If this administration be in -accordance with the arbitrary will of the legislator—that is, if his -will, as it appears in his statutes, be the highest rule of decision -known to the judicial tribunals,—the government is a despotism, and the -people are slaves. If, on the other hand, the rule of decision be those -principles of natural equity and justice, which constitute, or at least -are embodied in, the general conscience of mankind, the people are free -in just so far as that conscience is enlightened. - -That the authority of the king was of little weight with the _judicial -tribunals_, must necessarily be inferred from the fact already stated, -that his authority over the _people_ was but weak. If the authority of -his laws had been paramount in the judicial tribunals, it would have -been paramount with the people, of course; because they would have had -no alternative but submission. The fact, then, that his laws were _not_ -authoritative with the people, is proof that they were _not_ -authoritative with the tribunals—in other words, that they were not, as -matter of course, enforced by the tribunals. - -But we have additional evidence that, up to the time of Magna Carta, the -laws of the king were not binding upon the judicial tribunals; and if -they were not binding before that time, they certainly were not -afterwards, as has already been shown from Magna Carta itself. It is -manifest from all the accounts we have of the courts in which juries -sat, prior to Magna Carta, such as the court-baron, the hundred court, -the court-leet, and the county court, _that they were mere courts of -conscience, and that the juries were the judges, deciding causes -according to their own notions of equity, and not according to any laws -of the king, unless they thought them just_. - -These courts, it must be considered, were very numerous, and held very -frequent sessions. There were probably seven, eight, or nine hundred -courts _a month_, in the kingdom; the object being, as Blackstone says, -“_to bring justice home to every man’s door_.” (_3 Blackstone_, 30.) The -number of the _county_ courts, of course, corresponded to the number of -counties, (36.) The _court-leet_ was the criminal court for a district -less than a county. The _hundred court_ was the court for one of those -districts anciently called a _hundred_, because, at the time of their -first organization for judicial purposes, they comprised (as is -supposed) but a hundred families.[^44] The court-baron was the court for -a single manor, and there was a court for every manor in the kingdom. -All these courts were holden as often as once in three or five weeks; -the county court once a month. The king’s judges were present at none of -these courts; the only officers in attendance being sheriffs, bailiffs, -and stewards, merely ministerial, and not judicial, officers; doubtless -incompetent, and, if not incompetent, untrustworthy, for giving the -juries any reliable information in matters of law, beyond what was -already known to the jurors themselves. And yet these were the courts, -in which was done all the judicial business, both civil and criminal, of -the nation, except appeals, and some of the more important and difficult -cases.[^45] It is plain that the juries, in these courts, must, of -necessity, have been the sole judges of all matters of law whatsoever; -because there was no one present, but sheriffs, bailiffs, and stewards, -to give them any instructions; and surely it will not be pretended that -the jurors were bound to take their law from such sources as these. - -In the second place, it is manifest that the principles of law, by which -the juries determined causes, were, as a general rule, nothing else than -their own ideas of natural equity, _and not any laws of the king_; -because but few laws were enacted, and many of those were not written, -but only agreed upon in council.[^46] Of those that were written, few -copies only were made, (printing being then unknown,) and not enough to -supply all, or any considerable number, of these numerous courts. Beside -and beyond all this, few or none of the jurors could have read the laws, -if they had been written; because few or none of the common people -could, at that time, read. Not only were the common people unable to -read their own language, but, at the time of Magna Carta, the laws were -written in Latin, a language that could be read by few persons except -the priests, who were also the lawyers of the nation. Mackintosh says, -“the first act of the House of Commons composed and recorded in the -English tongue,” was in 1415, two centuries after Magna Carta.[^47] Up to -this time, and for some seventy years later, the laws were generally -written either in Latin or French; both languages incapable of being -read by the common people, as well Normans as Saxons; and one of them, -the Latin, not only incapable of being read by them, but of being even -understood when it was heard by them. - -To suppose that the people were bound to obey, and juries to enforce, -laws, many of which were unwritten, none of which _they_ could read, and -the larger part of which (those written in Latin) they could not -translate, or understand when they heard them read, is equivalent to -supposing the nation sunk in the most degrading slavery, instead of -enjoying a liberty of their own choosing. - -Their knowledge of the laws passed by the king was, of course, derived -only from oral information; and “_the good laws_,” as some of them were -called, in contradistinction to others—those which the people at large -esteemed to be good laws—were doubtless enforced by the juries, and the -others, as a general thing, disregarded.[^48] - -That such was the nature of judicial proceedings, and of the power of -juries, up to the time of Magna Carta, is further shown by the following -authorities. - -> “The sheriffs and bailiffs caused the free tenants of their bailiwics -> to meet at their counties and hundreds; _at which justice was so -> done, that every one so judged his neighbor by such judgment as a man -> could not elsewhere receive in the like cases_, until such times as -> the customs of the realm were put in writing, and certainly -> published. - -> “And although a freeman commonly was not to serve (as a juror or -> judge) without his assent, nevertheless it was assented unto that -> free tenants should meet together in the counties and hundreds, and -> lords courts, if they were not specially exempted to do such suits, -> and _there judged their neighbors_.”—_Mirror of Justices_, p. 7, 8. - -Gilbert, in his treatise on the Constitution of England, says: - -> “In the county courts, if the debt was above forty shillings, there -> issued a _justicies_ (a commission) to the sheriff, to enable him to -> hold such a plea, _where the suitors_ (_jurors_) _are judges of the -> law and fact_.”—_Gilbert’s Cases in Law and Equity, &c., &c._, 456. - -All the ancient writs, given in Glanville, for summoning jurors, -indicate that the jurors judged of everything, _on their consciences -only_. The writs are in this form: - -> “Summon twelve free and legal men (or sometimes twelve knights) to be -> in court, _prepared upon their oaths to declare whether A or B have -> the greater right to the land_ (_or other thing_) _in question_.” See -> Writs in Beames’ Glanville, p. 54 to 70, and 233-306 to 332. - -Crabbe, speaking of the time of Henry I., (1100 to 1135,) recognizes the -fact that the jurors were the judges. He says: - -> “By one law, every one was to be tried by his peers, who were of the -> same neighborhood as himself. * * By another law, _the judges, for so -> the jury were called_, were to be chosen by the party impleaded, -> after the manner of the Danish _nembas_; by which, probably, is to be -> understood that the defendant had the liberty of taking exceptions -> to, or challenging the jury, as it was afterwards called.”—_Crabbe’s -> History of the English Law_, p. 55. - -Reeve says: - -> “The great court for _civil_ business was the _county court_; held -> once every four weeks. Here the sheriff presided; _but the suitors of -> the court, as they were called, that is, the freemen or landholders -> of the county, were the judges_; and the sheriff was to execute the -> judgment. * * - -> “The _hundred court_ was held before _some bailiff_; the _leet_ -> before the lord of the manor’s steward.[^49] * * - -> “Out of the county court was derived an inferior court of _civil_ -> jurisdiction, called the _court-baron_. This was held from three -> weeks to three weeks, and _was in every respect like the county -> court_;” (_that is, the jurors were judges in it_;) “only the lord to -> whom this franchise was granted, or _his steward_, _presided instead -> of the sheriff_.”—_1 Reeve’s History of the English Law_, p. 7. - -Chief Baron Gilbert says: - -> “Besides the tenants of the king, which held _per baroniam_, (by the -> right of a baron,) and did suit and service (served as judges) at his -> own court; and the burghers and tenants in ancient demesne, that did -> suit and service (served as jurors or judges) in their own court in -> person, and in the king’s by proxy, there was also a set of -> freeholders, that did suit and service (served as jurors) at the -> county court. These were such as anciently held of the lord of the -> county, and by the escheats of earldoms had fallen to the king; or -> such as were granted out by service to hold of the king, but with -> particular reservation to do suit and service (serve as jurors) -> before the king’s bailiff; _because it was necessary the sheriff, or -> bailiff of the king, should have suitors_ (_jurors_) _at the county -> court, that the business might be despatched. These suitors are the -> pares_ (_peers_) _of the county court, and indeed the judges of it; -> as the pares_ (_peers_) _were the judges in every court-baron_; and -> therefore the king’s bailiff having a court before him, there must be -> _pares or judges, for the sheriff himself is not a judge_; and though -> the style of the court is _Curia prima Comitatus E.C. Milit.’ -> vicecom’ Comitat’ præd’ Tent’ apud B._, &c. (First Court of the -> county, E.C. knight, sheriff of the aforesaid county, held at B., &c.); -> by which it appears that the court was the sheriff’s; _yet, by -> the old feudal constitutions, the lord was not judge, but the pares_ -> (_peers_) _only_; so that, even in a _justicies_, which was a -> commission to the sheriff to hold plea of more than was allowed by -> the natural jurisdiction of a county court, _the pares_ (_peers, -> jurors_) _only were judges, and not the sheriff_; because it was to -> hold plea in the same manner as they used to do in that (the lord’s) -> court.”—_Gilbert on the Court of Exchequer_, ch. 5, p. 61-2. - -> “It is a distinguishing feature of the feudal system, to make civil -> jurisdiction necessarily, and criminal jurisdiction ordinarily, -> coëxtensive with tenure; and accordingly there is inseparably -> incident to every manor a court-baron (curia baronum), _being a court -> in which the freeholders of the manor are the sole judges_, but in -> which the lord, by himself, or more commonly by his steward, -> presides.”—_Political Dictionary_, word _Manor_. - -The same work, speaking of the county court, says: “_The judges were the -freeholders who did suit to the court._” See word _Courts_. - -> “In the case of freeholders attending as suitors, the county court -> or court-baron, (as in the case of the ancient tenants _per baroniam_ -> attending Parliament,) _the suitors are the judges of the court, both -> for law and for fact_, and the sheriff or the under sheriff in the -> county court, and the lord or his steward in the court-baron, are -> only presiding officers, _with no judicial authority_.”—_Political -> Dictionary_, word _Suit_. - -> “COURT, (curtis, curia aula); the space enclosed by the walls of a -> feudal residence, in which the followers of a lord used to assemble -> in the middle ages, to administer justice, and decide respecting -> affairs of common interest, &c. It was next used for those who stood -> in immediate connexion with the lord and master, the _pares curiæ_, -> (peers of the court,) the limited portion of the general assembly, to -> which was entrusted the pronouncing of judgment,” &c.—_Encyclopedia -> Americana_, word _Court_. - -> “In court-barons or county courts _the steward was not judge, but the -> pares_ (_peers_, _jurors_); nor was the speaker in the House of Lords -> judge, but the barons only.”—_Gilbert on the Court of Exchequer_, -> ch. 3, p. 42. - -Crabbe, speaking of the Saxon times, says: - -> “The sheriff presided at the _hundred court_, * * and sometimes sat -> in the place of the alderman (earl) in the _county -> court_.”—_Crabbe_, 23. - -The sheriff afterwards became the sole presiding officer of the county -court. - -Sir Thomas Smith, Secretary of State to Queen Elizabeth, writing more -than three hundred years after Magna Carta, in describing the difference -between the Civil Law and the English Law, says: - -> “_Judex_ is of us called Judge, but our fashion is so divers, that -> they which give the deadly stroke, and either condemn or acquit the -> man for guilty or not guilty, _are not called judges, but the twelve -> men. And the same order as well in civil matters and pecuniary, as in -> matters criminal_.”—_Smith’s Commonwealth of England_, ch. 9, p. 53, -> Edition of 1621. - -> _Court-Leet._ “That the _leet_ is the most ancient court in the land -> for _criminal_ matters, (the court-baron being of no less antiquity -> in _civil_,) has been pronounced by the highest legal authority. * * -> Lord Mansfield states that this court was coeval with the -> establishment of the Saxons here, and its activity marked very -> visibly both among the Saxons and Danes. * * The leet is a court of -> record for the cognizance of criminal matters, or pleas of the crown; -> and necessarily belongs to the king; though a subject, usually the -> lord of the manor, may be, and is, entitled to the profits, -> consisting of the essoign pence, fines, and amerciaments. - -> “_It is held before the steward, or was, in ancient times, before the -> bailiff, of the lord._”—_Tomlin’s Law Dict._, word _Court-Leet_. - -Of course the jury were the judges in this court, where only a “steward” -or “bailiff” of a manor presided. - -> “No cause of consequence was determined without the king’s writ; for -> even in the county courts, of the debts, which were above forty -> shillings, there issued a _Justicies_ (commission) to the sheriff, to -> enable him to hold such plea, _where the suitors are judges of the -> law and fact_.”—_Gilbert’s History of the Common Pleas, -> Introduction_, p. 19. - -> “This position” (that “the matter of law was decided by the King’s -> Justices, but the matter of fact by the pares”) “_is wholly -> incompatible with the common law, for the Jurata (jury) were the sole -> judges both of the law and the fact_.”—_Gilbert’s History of the -> Common Pleas_, p. 70, _note_. - -> We come now to the challenge; and of old _the suitors in court, who -> were judges_, could not be challenged; nor by the feudal law could -> the _pares_ be even challenged, _Pares qui ordinariam jurisdictionem -> habent recusari non possunt_; (the peers who have ordinary -> jurisdiction cannot be rejected;) “_but those suitors who are judges -> of the court_, could not be challenged; and the reason is, that there -> are several qualifications required by the writ, viz., that they be -> _liberos et legales homines de vincineto_ (free and legal men of the -> neighborhood) of the place laid in the declaration,” &c., -> &c.—_Ditto_, p. 93. - -> “_Ad questionem juris non respondent Juratores._” (To the question of -> law the jurors do not answer.) “The Annotist says, that this is -> indeed a maxim in the Civil-Law Jurisprudence, _but it does not bind -> an English jury, for by the common law of the land the jury are -> judges as well of the matter of law, as of the fact_, with this -> difference only, that the (a Saxon word) or judge on the bench is to -> give them no assistance in determining the matter of _fact_, but if -> they have any doubt among themselves relating to matter of _law_, -> they may then request him to explain it to them, which when he hath -> done, and they are thus become well informed, they, and they only, -> become competent judges of the matter of _law_. And this is the -> province of the judge on the bench, namely, to show, or _teach_ the -> law, but not to take upon him the trial of the delinquent, either in -> matter of fact or in matter of law.” (Here various Saxon laws are -> quoted.) “In neither of these fundamental laws is there the least -> word, hint, or idea, that the earl or alderman (that is to say, the -> _Prepositus_ (presiding officer) of the court, which is tantamount to -> _the judge on the bench_) is to take upon him to judge the delinquent -> in any sense whatever, the sole purport of his office is to _teach_ -> the secular or worldly law.”—_Ditto_, p. 57, _note_. - -> “The administration of justice was carefully provided for; it was not -> the caprice of their lord, _but the sentence of their peers, that -> they obeyed. Each was the judge of his equals, and each by his equals -> was judged._”—_Introd. to Gilbert on Tenures_, p. 12. - -> Hallam says: “A respectable class of free socagers, having, in -> general, full rights of alienating their lands, and holding them -> probably at a small certain rent from the lord of the manor, -> frequently occur in Domes-day Book. * * They undoubtedly were suitors -> to the court-baron of the lord, to whose soc, or right of justice, -> they belonged. _They were consequently judges in civil causes, -> determined before the manorial tribunal._”—_2 Middle Ages_, 481. - -Stephens adopts as correct the following quotations from Blackstone: - -> “The _Court-Baron_ is a court incident to every manor in the kingdom, -> to be holden by the steward within the said manor.” * * _It “is a -> court of common law, and it is the court before the freeholders who -> owe suit and service to the manor_,” (are bound to serve as jurors in -> the courts of the manor,) “_the steward being rather the registrar -> than the judge_. * * The freeholders’ court was composed of the -> lord’s tenants, who were the _pares_ (equals) of each other, and were -> bound by their feudal tenure to assist their lord in the dispensation -> of domestic justice. This was formerly held every three weeks; _and -> its most important business was to determine, by writ of right, all -> controversies relating to the right of lands within the manor_.”—_3 -> Stephens’ Commentaries_, 392-3. _3 Blackstone_, 32-3. - -> “A _Hundred Court_ is only a larger court-baron, being held for all -> the inhabitants of a particular hundred, instead of a manor. _The -> free suitors (jurors) are here also the judges, and the steward the -> register._”—_3 Stephens_, 394. _3 Blackstone_, 33. - -> “The _County Court_ is a court incident to the jurisdiction of the -> sheriff. * * _The freeholders of the county are the real judges in -> this court, and the sheriff is the ministerial officer._”—_3 -> Stephens_, 395-6. _3 Blackstone_, 35-6. - -Blackstone describes these courts, as courts “_wherein injuries were -redressed in an easy and expeditious manner, by the suffrage of -neighbors and friends_.”—_3 Blackstone_, 30. - -> “When we read of a certain number of _freemen_ chosen by the parties -> to decide in a dispute—all bound by oath to vote _in foro -> conscientia_—and that _their_ decision, _not the will of the judge -> presiding, ended the suit_, we at once perceive that a great -> improvement has been made in the old form of compurgation—an -> improvement which impartial observation can have no hesitation to -> pronounce as identical in its main features with the trial by -> jury.”—_Dunham’s Middle Ages_, Sec. 2, B. 2, Ch. 1. _57 Lardner’s -> Cab. Cyc._, 60. - -> “The bishop and the earl, or, in his absence, the gerefa, (sheriff,) -> and sometimes both the earl and the gerefa, presided at the -> _schyre-mote_ (county court); the gerefa (sheriff) usually alone -> presided at the _mote_ (meeting or court) of the hundred. In the -> cities and towns which were not within any peculiar jurisdiction, -> there was held, at regular stated intervals, a _burgh mote_, (borough -> court,) for the administration of justice, at which a gerefa, or a -> magistrate appointed by the king, presided.”—_Spence’s Origin of the -> Laws and Political Institutions of Modern Europe_, p. 444. - -> “The right of the plaintiff and defendant, and of the prosecutor and -> criminal, _to challenge the judices_, (judges,) _or assessors,[^50] -> appointed to try the cause in civil matters, and to decide upon the -> guilt or innocence of the accused in criminal matters_, is recognized -> in the treatise called the Laws of Henry the First; but I cannot -> discover, from the Anglo-Saxon laws or histories, that before the -> Conquest the parties had any general right of challenge; _indeed, had -> such right existed, the injunctions to all persons standing in the -> situation of judges (jurors) to do right according to their -> conscience_, would scarcely have been so frequently and anxiously -> repeated.”—_Spence_, 456. - -Hale says: - -> “The administration of the common justice of the kingdom seems to be -> wholly dispensed in the county courts, hundred courts, and -> courts-baron; except some of the greater crimes reformed by the laws -> of King Henry I., and that part thereof which was sometimes taken up -> by the _Justitiarius Angliæ_.” - -> This doubtless bred great inconvenience, uncertainty, and variety in -> the laws, viz.: - -> “_First, by the ignorance of the judges, which were the freeholders -> of the county._ * * - -> “Thirdly, a third inconvenience was, that all the business of any -> moment was carried by parties and factions. _For the freeholders -> being generally the judges_, and conversing one among another, _and -> being as it were the chief judges, not only of the fact, but of the -> law_; every man that had a suit there, sped according as he could -> make parties.”—_1 Hale’s History of the Common Law_, p. 246. - -> “In all these tribunals,” (county court, hundred court, &c.,) “_the -> judges were the free tenants_, owing suit to the court, and -> afterwards called its peers.”—_1 Lingard’s History of England_, 488. - -Henry calls the twelve jurors “assessors,” and says: - -> “These assessors, _who were in reality judges_, took a solemn oath, -> that they would faithfully discharge the duties of their office, and -> not suffer an innocent man to be condemned, nor any guilty person to -> be acquitted.”—_3 Henry’s History of Great Britain_, 346. - -Tyrrell says: - -> “Alfred cantoned his kingdom, first into _Trihings_ and _Lathes_, as -> they are still called in Kent and other places, consisting of three -> or four Hundreds; _in which, the freeholders being judges_, such -> causes were brought as could not be determined in the Hundred -> court.”—_Tyrrell’s Introduction to the History of England_, p. 80. - -Of the _Hundred Court_ he says: - -> “In this court anciently, _one of the principal inhabitants, called -> the alderman, together with the barons of the Hundred_[^51]_—id est the -> freeholders—was judge_.”—_Ditto_, p. 80. - -Also he says: - -> “By a law of Edward the Elder, ‘Every sheriff shall convene the -> people once a month, and do equal right to all, putting an end to -> controversies at times appointed.’”—_Ditto_, p. 86. - -> “A statute, emphatically termed the ‘Grand Assize,’ enabled the -> defendant, if he thought proper, to abide by the testimony of the -> twelve good and lawful knights, chosen by four others of the -> vicinage, _and whose oaths gave a final decision to the contested -> claim_.”—_1 Palgrave’s Rise and Progress of the English -> Commonwealth_, 261. - -> “From the moment when the crown became accustomed to the ‘Inquest,’ a -> restraint was imposed upon every branch of the prerogative. _The king -> could never be informed of his rights, but through the medium of the -> people._ Every ‘extent’ by which he claimed the profits and -> advantages resulting from the casualties of tenure, every process by -> which he repressed the usurpations of the baronage, depended upon the -> ‘good men and true’ who were impanelled to ‘pass’ between the subject -> and the sovereign; and the thunder of the Exchequer at Westminster -> might be silenced by the honesty, the firmness, or the obstinacy, of -> one sturdy knight or yeoman in the distant shire. - -> Taxation was controlled in the same manner by the voice of those who -> were most liable to oppression. * * A jury was impanelled to adjudge -> the proportion due to the sovereign; and this course was not -> essentially varied, even after the right of granting aids to the -> crown was fully acknowledged to be vested in the parliament of the -> realm. The people taxed themselves; and the collection of the grants -> was checked and controlled, and, perhaps, in many instances evaded, -> by these virtual representatives of the community. - -> The principle of the jury was, therefore, not confined to its mere -> application as a mode of trying contested facts, whether in civil or -> criminal cases; and, both in its form and in its consequences, it had -> a very material influence upon the general constitution of the realm. -> * * The main-spring of the machinery of remedial justice existed in -> the franchise of the lower and lowest orders of the political -> hierarchy. Without the suffrage of the yeoman, the burgess, and the -> churl, the sovereign could not exercise the most important and most -> essential function of royalty; from them he received the power of -> life and death; he could not wield the sword of justice until the -> humblest of his subjects placed the weapon in his hand.”—_1 -> Palgrave’s Rise and Progress of the English Constitution_, 274-7. - -Coke says, “The court of the county is no court of record,[^52] _and the -suitors are the judges thereof_.”—_4 Inst._, 266. - -Also, “The court of the Hundred is no court of record, _and the suitors -be thereof judges_.”—_4 Inst._, 267. - -Also, “The court-baron is a court incident to every manor, and is not of -record, _and the suitors be thereof judges_.”—_4 Inst._, 268. - -Also, “The court of ancient demesne is in the nature of a court-baron, -_wherein the suitors are judges_, and is no court of record.”—_4 -Inst._, 269. - -Millar says, “Some authors have thought that jurymen were originally -_compurgators_, called by a defendant to swear that they believed him -innocent of the facts with which he was charged.... But ... compurgators -were merely witnesses; _jurymen were, in reality, judges_. The former -were called to confirm the oath of the party by swearing, according to -their belief, that he had told the truth, (in his oath of purgation;) -_the latter were appointed to try, by witnesses, and by all other means -of proof, whether he was innocent or guilty_.... Juries were accustomed -to ascertain the truth of facts, by the defendant’s oath of purgation, -together with that of his compurgators.... Both of them (jurymen and -compurgators) were obliged to swear that they would _tell the truth_.... -According to the simple idea of our forefathers, guilt or innocence was -regarded as a mere matter of fact; and it was thought that no man, who -knew the real circumstances of a case, could be at a loss to determine -whether the culprit ought to be condemned or acquitted.”—_1 Millar’s -Hist. View of Eng. Gov._, ch. 12, p. 332-4. - -Also, “The same form of procedure, which took place in the -administration of justice among the vassals of a barony, was gradually -extended to the courts held in the _trading towns_.”—_Same_, p. 335. - -Also, “The same regulations, concerning the distribution of justice by -the intervention of juries, ... _were introduced into the baron courts -of the king_, as into those of the nobility, or such of his subjects as -retained their allodial property.”—_Same_, p. 337. - -Also. “This tribunal” (the _aula regis_, or king’s court, afterwards -divided into the courts of King’s Bench, Common Pleas, and Exchequer) -“was properly the ordinary baron-court of the king; and, being in the -same circumstances with the baron-courts of the nobility, it was under -the same necessity of trying causes by the intervention of a -jury.”—_Same_, vol. 2, p. 292. - -Speaking of the times of Edward the First, (1272 to 1307,) Millar says: - -“What is called the petty jury was therefore introduced into these -tribunals, (the King’s Bench, the Common Pleas, and the _Exchequer_,) as -well as into their auxiliary courts employed to distribute justice in -the circuits; and was thus rendered essentially necessary in determining -causes of every sort, whether civil, criminal, or _fiscal_.”—_Same_, -vol. 2, p. 293-4. - -Also, “That this form of trial (by jury) obtained universally in all the -feudal governments, as well as in that of England, there can be no -reason to doubt. In France, in Germany, and in other European countries, -where we have any accounts of the constitution and procedure of the -feudal courts, it appears that lawsuits of every sort concerning the -freemen or vassals of a barony, were determined by the _pares curiæ_ -(peers of the court;) _and that the judge took little more upon him than -to regulate the method of proceeding, or to declare the verdict of the -jury_.”—_Same_, vol. 1, ch. 12, p. 329. - -Also, “Among the Gothic nations of modern Europe, the custom of deciding -lawsuits by a jury seems to have prevailed universally; first in the -allodial courts of the county, or of the hundred, and afterwards in the -baron-courts of every feudal superior.”—_Same_, vol. 2, p. 296. - -Palgrave says that in Germany “The Graff (gerefa, sheriff) placed -himself in the seat of judgment, and gave the charge to the assembled -free Echevins, warning them to pronounce judgment according to right and -justice.”—2 _Palgrave_, 147. - -Also, that, in Germany, “The Echevins were composed of the villanage, -somewhat obscured in their functions by the learning of the grave -civilian who was associated to them, and somewhat limited by the -encroachments of modern feudality; _but they were still substantially -the judges of the court_.”—_Same_, 148. - -Palgrave also says, “Scotland, in like manner, had the laws of Burlaw, -or Birlaw, which were made and determined by the neighbors, elected by -common consent, in the Burlaw or Birlaw courts, wherein knowledge was -taken of complaints between neighbor and neighbor, _which men, so -chosen, were judges and arbitrators_, and called Birlaw men.”—1 -_Palgrave’s Rise_, &c., p. 80. - -But, in order to understand the common law trial by jury, as it existed -prior to Magna Carta, and as it was guaranteed by that instrument, it is -perhaps indispensable to understand more fully the nature of the courts -in which juries sat, and the extent of the powers exercised by juries in -those courts. I therefore give in a note extended extracts, on these -points, from Stuart on the Constitution of England, and from -Blackstone’s Commentaries.[^53] - -That all these courts were mere _courts of conscience, in which the -juries were sole judges, administering justice according to their own -ideas of it_, is not only shown by the extracts already given, but is -explicitly acknowledged in the following one, in which the _modern -“courts of conscience“_ are compared with the _ancient hundred and -county courts_, and the preference given to the latter, on the ground -that the duties of the jurors in the one case, and of the commissioners -in the other, are the same, and that the consciences of a jury are a -safer and purer tribunal than the consciences of individuals specially -appointed, and holding permanent offices. - -> “But there is one species of courts constituted by act of Parliament, -> in the city of London, and other trading and populous districts, -> which, in their proceedings, so vary from the course of the common -> law, that they deserve a more particular consideration. I mean the -> court of requests, _or courts of conscience_, for the recovery of -> small debts. The first of these was established in London so early as -> the reign of Henry VIII., by an act of their common council; which, -> however, was certainly insufficient for that purpose, and illegal, -> till confirmed by statute 3 Jac. I., ch. 15, which has since been -> explained and amended by statute 14 Geo. II., ch. 10. The -> constitution is this: two aldermen and four commoners sit twice a -> week to hear all causes of debt not exceeding the value of forty -> shillings; which they examine in a summary way, by the oath of the -> parties or other witnesses, _and make such order therein as is -> consonant to equity and good conscience_.* * Divers trading towns and -> other districts have obtained acts of Parliament, for establishing -> in them _courts of conscience_ upon nearly the same plan as that in -> the city of London. - -> “The anxious desire that has been shown to obtain these several acts, -> proves clearly that the nation, in general, is truly sensible of the -> great inconvenience arising from the disuse of the ancient county and -> hundred courts, wherein causes of this small value were always -> formerly decided with very little trouble and expense to the parties. -> But it is to be feared that the general remedy, which of late hath -> been principally applied to this inconvenience, (the erecting these -> new jurisdictions,) may itself be attended in time with very ill -> consequences; as the method of proceeding therein is entirely in -> derogation of the common law; and their large discretionary powers -> create a petty tyranny in a set of standing commissioners; and as the -> disuse of the trial by jury may tend to estrange the minds of the -> people from that valuable prerogative of Englishmen, which has -> already been more than sufficiently excluded in many instances. _How -> much rather is it to be wished that the proceedings in the county and -> hundred courts could be again revived_, without burdening the -> freeholders with too frequent and tedious attendances; and at the -> same time removing the delays that have insensibly crept into their -> proceedings, and the power that either party has of transferring at -> pleasure their suits to the courts at Westminster! _And we may, with -> satisfaction, observe, that this experiment has been actually tried, -> and has succeeded in the populous county of Middlesex_, which might -> serve as an example for others. For by statute 23 Geo. II., ch. 33, -> it is enacted: - -> 1. That a special county court shall be held at least once in a -> month, in every hundred of the county of Middlesex, _by the county -> clerk_. - -> 2. _That twelve freeholders of that hundred, qualified to serve on -> juries, and struck by the sheriff, shall be summoned to appear at -> such court by rotation_; so as none shall be summoned oftener than -> once a year. - -> 3. That in all causes not exceeding the value of forty shillings, -> _the county clerk and twelve suitors (jurors) shall proceed in a -> summary way_, examining the parties and witnesses on oath, without -> the formal process anciently used; _and shall make such order therein -> as they shall judge agreeable to conscience_.”—_3 Blackstone_, -> 81-83. - -What are these but courts of conscience? And yet Blackstone tells us -they are a _revival of the ancient hundred and county courts_. And what -does this fact prove, but that the ancient common law courts, in which -juries sat, were mere courts of conscience? - -It is perfectly evident that in all these courts the jurors were the -judges, and determined all questions of law for themselves; because the -only alternative to that supposition is, _that the jurors took their law -from sheriffs, bailiffs, and stewards_, of which there is not the least -evidence in history, nor the least probability in reason. It is evident, -also, that they judged independently of the laws of the king, for the -reasons before given, viz., that the authority of the king was held in -very little esteem; and, secondly, that the laws of the king (not being -printed, and the people being unable to read them if they had been -printed) must have been in a great measure unknown to them, and could -have been received by them only on the authority of the sheriff, -bailiff, or steward. If laws were to be received by them on the -authority of these officers, the latter would have imposed such laws -upon the people as they pleased. - -These courts, that have now been described, were continued in full power -long after Magna Carta, no alteration being made in them by that -instrument, _nor in the mode of administering justice in them_. - -There is no evidence whatever, so far as I am aware, that the juries had -any _less_ power in the courts held by the king’s justices, than in -those held by sheriffs, bailiffs, and stewards; and there is no -probability whatever that they had. All the difference between the -former courts and the latter undoubtedly was, that, in the former, the -juries had the benefit of the advice and assistance of the justices, -which would, of course, be considered valuable in difficult cases, on -account of the justices being regarded as more learned, not only in the -laws of the king, but also in the common law, or “law of the land.” - -The conclusion, therefore, I think, inevitably must be, that neither the -laws of the king, nor the instructions of his justices, had any -authority over jurors beyond what the latter saw fit to accord to them. -And this view is confirmed by this remark of Hallam, the truth of which -all will acknowledge: - -> “The rules of legal decision, among a rude people, are always very -> simple; not serving much to guide, far less to control the feelings -> of natural equity.”—_2 Middle Ages_, ch. 8, part 2, p. 465. - -It is evident that it was in this way, _by the free and concurrent -judgments of juries, approving and enforcing certain laws and rules of -conduct, corresponding to their notions of right and justice_, that the -laws and customs, which, for the most part, made up the _common law_, -and were called, at that day, “_the good laws, and good customs_,” and -“_the law of the land_,” were established. How otherwise could they ever -have become established, as Blackstone says they were, “_by long and -immemorial usage, and by their universal reception throughout the -kingdom_,”[^54] when, as the Mirror says, “_justice was so done, that -every one so judged his neighbor, by such judgment as a man could not -elsewhere receive in the like cases, until such times as the customs of -the realm were put in writing and certainly published_?” - -The fact that, in that dark age, so many of the principles of natural -equity, as those then embraced in the _Common Law_, should have been so -uniformly recognized and enforced by juries, as to have become -established by general consent as “_the law of the land_;” and the -further fact that this “law of the land” was held so sacred that even -the king could not lawfully infringe or alter it, but was required to -swear to maintain it, are beautiful and impressive illustrations of the -truth that men’s minds, even in the comparative infancy of other -knowledge, have clear and coincident ideas of the elementary principles, -and the paramount obligation, of justice. The same facts also prove that -the common mind, and the general, or, perhaps, rather, the universal -conscience, as developed in the untrammelled judgments of juries, may be -safely relied upon for the preservation of individual rights in civil -society; and that there is no necessity or excuse for that deluge of -arbitrary legislation, with which the present age is overwhelmed, under -the pretext that unless laws be _made_, the law will not be known; a -pretext, by the way, almost universally used for overturning, instead of -establishing, the principles of justice. - - -## The Oaths of Jurors - -The oaths that have been administered to jurors, in England, and which -are their _legal_ guide to their duty, _all_ (so far as I have -ascertained them) corroborate the idea that the jurors are to try all -cases on their intrinsic merits, independently of any laws that they -deem unjust or oppressive. It is probable that an oath was never -administered to a jury in England, either in a civil or criminal case, -to try it _according to law_. - -The earliest oath that I have found prescribed by law to be administered -to jurors is in the laws of Ethelred, (about the year 1015,) which -require that the jurors “_shall swear, with their hands upon a holy -thing, that they will condemn no man that is innocent, nor acquit any -that is guilty_.”—_4 Blackstone_, 302. _2 Turner’s History of the -Anglo-Saxons, 155. Wilkins’ Laws of the Anglo-Saxons_, 117. _Spelman’s -Glossary_, word _Jurata_. - -Blackstone assumes that this was the oath of the _grand_ jury (_4 -Blackstone_, 302); but there was but one jury at the time this oath was -ordained. The institution of two juries, grand and petit, took place -after the Norman Conquest. - -Hume, speaking of the administration of justice in the time of Alfred, -says that, in every hundred, - -> “Twelve freeholders were chosen, who, having sworn, together with the -> hundreder, or presiding magistrate of that division, _to administer -> impartial justice_, proceeded to the examination of that cause which -> was submitted to their jurisdiction.”—_Hume_, ch. 2. - -By a law of Henry II., in 1164, it was directed that the sheriff -“_faciet jurare duodecim legales homines de vicineto seu de villa, quod -inde veritatem secundum conscientiam suam manifestabunt_,” (shall make -twelve legal men from the neighborhood _to swear that they will make -known the truth according to their conscience_.)—_Crabbe’s History of -the English Law_, 119. _1 Reeves_, 87. _Wilkins_, 321-323. - -Glanville, who wrote within the half century previous to Magna Carta, -says: - -> “Each of the knights summoned for this purpose (as jurors) ought to -> swear that he will neither utter that which is false, nor knowingly -> conceal the truth.”—_Beames’ Glanville_, 65. - -Reeve calls the trial by jury “_the trial by twelve men sworn to speak -the truth_.”—_1 Reeve’s History of the English Law_, 87. - -Henry says that the jurors “took a solemn oath, that they would -faithfully discharge the duties of their office, and not suffer an -innocent man to be condemned, nor any guilty person to be -acquitted.”—_3 Henry’s Hist. of Great Britain_, 346. - -The _Mirror of Justices_, (written within a century after Magna Carta,) -in the chapter on the abuses of the Common Law, says: - -> “It is abuse to use the words, _to their knowledge_, in their oaths, -> to make the jurors speak upon thoughts, _since the chief words of -> their oaths be that they speak the truth_.”—p. 249. - -Smith, writing in the time of Elizabeth, says that, in _civil_ suits, -the jury “be sworn to declare the truth of that issue according to the -evidence, and their conscience.”—_Smith’s Commonwealth of England_, -edition of 1621, p. 73. - -In _criminal_ trials, he says: - -> “The clerk giveth the juror an oath to go uprightly betwixt the -> prince and the prisoner.”—_Ditto_, p. 90.[^55] - -Hale says: - -> “Then twelve, and no less, of such as are indifferent and are -> returned upon the principal panel, or the _tales_, are sworn to try -> the same according to the evidence.”—_2 Hale’s History of the Common -> Law_, 141. - -It appears from Blackstone that, even _at this day, neither in civil nor -criminal cases_, are jurors in England sworn to try causes _according to -law_. He says that in civil suits the jury are - -> “Sworn well and truly to _try the issue_ between the parties, and a -> true verdict to give according to the evidence.”—_3 Blackstone_, -> 365. - -“_The issue_” to be tried is whether A owes B anything; and if so, how -much? or whether A has in his possession anything that belongs to B; or -whether A has wronged B, and ought to make compensation; and if so, how -much? - -No statute passed by a legislature, simply as a legislature, can alter -either of these “issues” in hardly any conceivable case, perhaps in -none. No _unjust_ law could ever alter them in any. They are all mere -questions of natural justice, which legislatures have no power to alter, -and with which they have no right to interfere, further than to provide -for having them settled by the most competent and impartial tribunal -that it is practicable to have, and then for having all just decisions -enforced. And any tribunal, whether judge or jury, that attempts to try -these issues, has no more moral right to be swerved from the line of -justice, by the will of a legislature, than by the will of any other -body of men whatever. And this oath does not require or permit a jury to -be so swerved. - -In criminal cases, Blackstone says the oath of the jury in England is: - -> “Well and truly to try, and true deliverance make, between our -> sovereign lord, the king, and the prisoner whom they have in charge, -> and a true verdict to give according to the evidence.”—_4 -> Blackstone_, 355. - -“The issue” to be tried, in a criminal case, is “_guilty_,” or “_not -guilty_.” The laws passed by a legislature can rarely, if ever, have -anything to do with this issue. “_Guilt_” is an _intrinsic_ quality of -actions, and can neither be created, destroyed, nor changed by -legislation. And no tribunal that attempts to try this issue can have -any moral right to declare a man _guilty_, for an act that is -intrinsically innocent, at the bidding of a legislature, any more than -at the bidding of anybody else. And this oath does not require or permit -a jury to do so. - -The words, “_according to the evidence_,” have doubtless been introduced -into the above oaths in modern times. They are unquestionably in -violation of the Common Law, and of Magna Carta, if by them be meant -such evidence only as the government sees fit to allow to go to the -jury. If the government can dictate the evidence, and require the jury -to decide according to that evidence, it necessarily dictates the -conclusion to which they must arrive. In that case the trial is really a -trial by the government, and not by the jury. _The jury_ cannot _try an -issue_, unless _they_ determine what evidence shall be admitted. The -ancient oaths, it will be observed, say nothing about “_according to the -evidence_.” They obviously take it for granted that the jury try the -whole case; and of course that _they_ decide what evidence shall be -admitted. It would be intrinsically an immoral and criminal act for a -jury to declare a man guilty, or to declare that one man owed money to -another, unless all the evidence were admitted, which _they_ thought -ought to be admitted, for ascertaining the truth.[^56] - -_Grand Jury._—If jurors are bound to enforce all laws passed by the -legislature, it is a very remarkable fact that the oath of grand juries -does not require them to be governed by the laws in finding indictments. -There have been various forms of oath administered to grand jurors; but -by none of them that I recollect ever to have seen, except those of the -States of Connecticut and Vermont, are they sworn to present men -_according to law_. The English form, as given in the essay on Grand -Juries, written near two hundred years ago, and supposed to have been -written by _Lord Somers_, is as follows: - -> “You shall diligently inquire, and true presentment make, of all such -> articles, matters, and things, as shall be given you in charge, and -> of all other matters and things as shall come to your knowledge -> touching this present service. The king’s council, your fellows, and -> your own, you shall keep secret. You shall present no person for -> hatred or malice; neither shall you leave any one unpresented for -> favor, or affection, for love or gain, or any hopes thereof; but in -> all things you shall present the truth, the whole truth, and nothing -> but the truth, to the best of your knowledge. So help you God.” - -This form of oath is doubtless quite ancient, for the essay says “our -ancestors appointed” it.—_See Essay_, p. 33-34. - -On the obligations of this oath, the essay says: - -> “If it be asked how, or in what manner, the (grand) juries shall -> inquire, the answer is ready, _according to the best of their -> understandings_. They only, not the judges, are sworn to search -> diligently to find out all treasons, &c., within their charge, and -> they must and ought to use their own discretion in the way and manner -> of their inquiry. _No directions can legally be imposed upon them by -> any court or judges_; an honest jury will thankfully accept good -> advice from judges, as their assistants; but they are bound by their -> oaths to present the truth, the whole truth, and nothing but the -> truth, to the best of their own, not the judge’s, knowledge. Neither -> can they, without breach of that oath, resign their consciences, or -> blindly submit to the dictates of others; and therefore ought to -> receive or reject such advices, as they judge them good or bad. * * -> Nothing can be more plain and express than the words of the oath are -> to this purpose. The jurors need not search the law books, nor tumble -> over heaps of old records, for the explanation of them. Our greatest -> lawyers may from hence learn more certainly our ancient law in this -> case, than from all the books in their studies. The language wherein -> the oath is penned is known and understood by every man, and the -> words in it have the same signification as they have wheresoever else -> they are used. The judges, without assuming to themselves a -> legislative power, cannot put a new sense upon them, other than -> according to their genuine, common meaning. They cannot magisterially -> impose their opinions upon the jury, and make them forsake the direct -> words of their oath, to pursue their glosses. The grand inquest are -> bound to observe alike strictly every part of their oath, and to use -> all just and proper ways which may enable them to perform it; -> otherwise it were to say, that after men had sworn to inquire -> diligently after the truth, according to the best of their knowledge, -> they were bound to forsake all the natural and proper means which -> their understandings suggest for the discovery of it, if it be -> commanded by the judges.”—_Lord Somers’ Essay on Grand Juries_, p. -> 38. - -What is here said so plainly and forcibly of the oath and obligations of -grand juries, is equally applicable to the oath and obligations of petit -juries. In both cases the simple oaths of the jurors, and not the -instructions of the judges, nor the statutes of kings nor legislatures, -are their legal guides to their duties.[^57] - - -## The Right of Juries to fix the Sentence - -The nature of the common law courts existing prior to Magna Carta, such -as the county courts, the hundred courts, the court-leet, and the -court-baron, all prove, what has already been proved from Magna Carta, -that, in jury trials, the juries fixed the sentence; because, in those -courts, there was no one but the jury who could fix it, unless it were -the sheriff, bailiff, or steward; and no one will pretend that it was -fixed by them. The juries unquestionably gave the “judgment” in both -civil and criminal cases. - -That the juries were to fix the sentence under Magna Carta, is also -shown by statutes subsequent to Magna Carta. - -A statute passed fifty-one years after Magna Carta, says that a baker, -for default in the weight of his bread, “_debeat_ amerciari vel subire -judicium pilloræ,”—that is, “_ought_ to be amerced, or suffer the -sentence of the pillory.” And that a brewer, for “selling ale, contrary -to the assize,” “_debeat_ amerciari, vel pati judicium tumbrelli;” that -is, “_ought_ to be amerced, or suffer judgment of the tumbrel.”—_51 -Henry III._, st. 6. (1266.) - -If the king (the legislative power) had had authority to fix the -punishments of these offences imperatively, he would naturally have said -these offenders _shall_ be amerced, and _shall_ suffer judgment of the -pillory and tumbrel, instead of thus simply expressing the opinion that -they _ought_ to be punished in that manner. - -The statute of Westminster, passed sixty years after Magna Carta, -provides that, - -> “No city, borough, nor town, _nor any man_, be amerced, without -> reasonable cause, and according to the quantity of the trespass; that -> is to say, every freeman saving his freehold, a merchant saving his -> merchandise, a villein his waynage, _and that by his or their -> peers_.”—_3 Edward I._, ch. 6. (1275.) - -The same statute (ch. 18) provides further, that, - -> “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, so that the -> sum is many times increased, and the parcels otherwise assessed than -> they ought to be, to the damage of the people, which be many times -> paid to the sheriffs and baretors, which do not acquit the payers; 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_, upon all such as ought to -> pay; and the justices shall cause the parcels to be put into their -> estreats, which shall be delivered up unto the exchequer, and not the -> whole sum.”—_St. 3 Edward I._, ch. 18, (1275.)[^58] - -The following statute, passed in 1341, one hundred and twenty-five years -after Magna Carta, providing for the trial of peers of the realm, and -the king’s ministers, contains a recognition of the principle of Magna -Carta, that the jury are to fix the sentence. - -> “Whereas before this time the peers of the land have been arrested -> and imprisoned, and their temporalities, lands, and tenements, goods -> and cattels, asseized in the king’s hands, and some put to death -> without judgment of their peers: It is accorded and assented, that no -> peer of the land, officer, nor other, because of his office, nor of -> things touching his office, nor by other cause, shall be brought in -> judgment to lose his temporalities, lands, tenements, goods and -> cattels, nor to be arrested, nor imprisoned, outlawed, exiled, nor -> forejudged, nor put to answer, nor be judged, but by _award_ -> (_sentence_) of the said peers in Parliament.”—_15 Edward III._, st. -> 1, sec. 2. - -Section 4, of the same statute provides, - -> “That in every Parliament, at the third day of every Parliament, the -> king shall take in his hands the offices of all the ministers -> aforesaid,” (that is, “the chancellor, treasurer, barons, and -> chancellor of the exchequer, the justices of the one bench and of the -> other, justices assigned in the country, steward and chamberlain of -> the king’s house, keeper of the privy seal, treasurer of the -> wardrobe, controllers, and they that be chief deputed to abide nigh -> the king’s son, Duke of Cornwall,”) “and so they shall abide four or -> five days; except the offices of justices of the one place or the -> other, justices assigned, barons of exchequer; so always that they -> and all other ministers be put to answer to every complaint; and if -> default be found in any of the said ministers, by complaint or other -> manner, and of that attainted in Parliament, he shall be punished by -> judgment of the peers, and put out of his office, and another -> convenient put in his place. And upon the same our said sovereign -> lord the king shall do (cause) to be pronounced and made execution -> without delay, _according to the judgment_ (_sentence_) of the said -> peers in the Parliament.” - -Here is an admission that the peers were to fix the sentence, or -judgment, and the king promises to make execution “_according to_” that -sentence. - -And this appears to be the law, under which peers of the realm and the -great officers of the crown were tried and sentenced, for four hundred -years after its passage, and, for aught I know, until this day. - -The first case given in Hargrave’s collection of English State Trials, -is that of _Alexander Nevil_, Archbishop of York, _Robert Vere_, Duke -of Ireland, _Michael de la Pole_, Earl of Suffolk, and _Robert -Tresilian_, Lord Chief Justice of England, with several others, -convicted of treason, before “the Lords of Parliament,” in 1388. The -sentences in these cases were adjudged by the “Lords of Parliament,” in -the following terms, as they are reported. - -> “Wherefore the said _Lords of Parliament_, there present, as judges -> in Parliament, in this case, _by assent of the king, pronounced their -> sentence_, and did adjudge the said archbishop, duke, and earl, with -> Robert Tresilian, so appealed, as aforesaid, to be guilty, and -> convicted of treason, and to be drawn and hanged, as traitors and -> enemies to the king and kingdom; and that their heirs should be -> disinherited forever, and their lands and tenements, goods and -> chattels, forfeited to the king, and that the temporalities of the -> Archbishop of York should be taken into the king’s hands.” - -> Also, in the same case, Sir _John Holt_, Sir _William Burgh_, Sir -> _John Cary_, Sir _Roger Fulthorpe_, and _John Locton_, “_were by the -> lords temporal, by the assent of the king_, adjudged to be drawn and -> hanged, as traitors, their heirs disinherited, and their lands and -> tenements, goods and chattels, to be forfeited to the king.” - -> Also, in the same case, _John Blake_, “of council for the king,” and -> _Thomas Uske_, under sheriff of Middlesex, having been convicted of -> treason, - -> “_The lords awarded, by assent of the king_, that they should both be -> hanged and drawn as traitors, as open enemies to the king and -> kingdom, and their heirs disinherited forever, and their lands and -> tenements, goods and chattels, forfeited to the king.” - -> Also, “_Simon Burleigh_, the king’s chamberlain,” being convicted of -> treason, “_by joint consent of the king and the lords_, sentence was -> pronounced against the said Simon Burleigh, that he should be drawn -> from the town to Tyburn, and there be hanged till he be dead, and -> then have his head struck from his body.” - -> Also, “_John Beauchamp_, steward of the household to the king, _James -> Beroverse_, and _John Salisbury_, knights, gentlemen of the privy -> chamber, _were in like manner condemned_.”—_1 Hargrave’s State -> Trials_, first case. - -Here the sentences were all fixed by the peers, _with the assent of the -king_. But that the king should be consulted, and his assent obtained to -the sentence pronounced by the peers, does not imply any deficiency of -power on their part to fix the sentence independently of the king. There -are obvious reasons why they might choose to consult the king, and -obtain his approbation of the sentence they were about to impose, -without supposing any legal necessity for their so doing. - -So far as we can gather from the reports of state trials, peers of the -realm were usually sentenced by those who tried them, _with the assent -of the king_. But in some instances no mention is made of the assent of -the king, as in the case of “Lionel, Earl of Middlesex, Lord High -Treasurer of England,” in 1624, (four hundred years after Magna Carta,) -where the sentence was as follows: - -> “This High Court of Parliament doth adjudge, that Lionel, Earl of -> Middlesex, now Lord Treasurer of England, shall lose all his offices -> which he holds in this kingdom, and shall, hereafter, be made -> incapable of any office, place, or employment in the state and -> commonwealth. That he shall be imprisoned in the tower of London, -> during the king’s pleasure. That he shall pay unto our sovereign lord -> the king a fine of 50,000 pounds. That he shall never sit in -> Parliament any more, and that he shall never come within the verge of -> the court.”—_2 Howell’s State Trials_, 1250. - -Here was a peer of the realm, and a minister of the king, of the highest -grade; and if it were ever _necessary_ to obtain the assent of the king -to sentences pronounced by the peers, it would unquestionably have been -obtained in this instance, and his assent would have appeared in the -sentence. - -_Lord Bacon_ was sentenced by the House of Lords, (1620,) _no mention -being made of the assent of the king_. The sentence is in these words: - -> “And, therefore, this High Court doth adjudge, That the Lord Viscount -> St. Albans, Lord Chancellor of England, shall undergo fine and ransom -> of 40,000 pounds. That he shall be imprisoned in the tower during the -> king’s pleasure. That he shall forever be incapable of any office, -> place, or employment in the state or commonwealth. That he shall -> never sit in Parliament, nor come within the verge of the court.” - -And when it was demanded of him, before sentence, whether it were his -hand that was subscribed to his confession, and whether he would stand -to it; he made the following answer, which implies that the lords were -the ones to determine his sentence. - -> “My lords, it is my act, my hand, my heart. _I beseech your lordships -> to be merciful to a broken reed._”—_1 Hargrave’s State Trials_, -> 386-7. - -The sentence against Charles the First, (1648,) after reciting the -grounds of his condemnation, concludes in this form: - -> “For all which treasons and crimes, _this court doth adjudge_, that -> he, the said Charles Stuart, as a tyrant, traitor, murderer, and -> public enemy to the good people of this nation, shall be put to death -> by the severing his head from his body.” - -The report then adds: - -> “This sentence being read, the president (of the court) spake as -> followeth: ‘This sentence now read and published, is the act, -> sentence, judgment and resolution of the whole court.’”—_1 -> Hargrave’s State Trials_, 1037. - -Unless it had been the received “_law of the land_” that those who tried -a man should fix his sentence, it would have required an act of -Parliament to fix the sentence of Charles, and his sentence would have -been declared to be “_the sentence of the law_,” instead of “_the act, -sentence, judgment, and resolution of the court_.” - -But the report of the proceedings in “the trial of Thomas, Earl of -Macclesfield, Lord High Chancellor of Great Britain, before the House of -Lords, for high crimes and misdemeanors in the execution of his office,” -in 1725, is so full on this point, and shows so clearly that it rested -wholly with the lords to fix the sentence, and that the assent of the -king was wholly unnecessary, that I give the report somewhat at length. - -_After being found guilty_, the earl addressed the _lords_, for a -_mitigation of sentence_, as follows: - -> ”‘I am now to expect your lordships’ judgment; and I hope that you -> will be pleased to consider that I have suffered no small matter -> already in the trial, in the expense I have been at, the fatigue, and -> what I have suffered otherways. * * I have paid back 10,800 pounds of -> the money already; I have lost my office; I have undergone the -> censure of both houses of Parliament, which is in itself a severe -> punishment,’” &c., &c. - -On being interrupted, he proceeded: - -> ”‘My lords, I submit whether this be not proper in _mitigation of -> your lordships’ sentence_; but whether it be or not, I leave myself -> to your lordships’ justice and mercy; I am sure neither of them will -> be wanting, and I entirely submit.’ * * - -> “Then the said earl, as also the managers, were directed to withdraw; -> and the House (of Lords) ordered Thomas, Earl of Macclesfield, to be -> committed to the custody of the gentleman usher of the black rod; and -> then proceeded to the consideration of what _judgment_,” (that is, -> _sentence_, for he had already been found _guilty_,) “to give upon -> the impeachment against the said earl.” * * - -> “The next day, the Commons, with their speaker, being present at the -> bar of the House (of Lords), * * the speaker of the House of Commons -> said as follows: - -> ”‘My Lords, the knights, citizens, and burgesses in Parliament -> assembled, in the name of themselves, and of all the commons of Great -> Britain, did at this bar impeach Thomas, Earl of Macclesfield, of -> high crimes and misdemeanors, and did exhibit articles of impeachment -> against him, and have made good their charge. I do, therefore, in the -> name of the knights, citizens, and burgesses, in Parliament -> assembled, and of all the commons of Great Britain, demand _judgment_ -> (_sentence_) of your lordships against Thomas, Earl of Macclesfield, -> for the said high crimes and misdemeanors.’ - -> “Then the Lord Chief Justice King, Speaker of the House of Lords, -> said: ‘Mr. Speaker, the Lords are now ready to proceed to judgment in -> the case by you mentioned. - -> ”‘Thomas, Earl of Macclesfield, the Lords have unanimously found you -> guilty of high crimes and misdemeanors, charged on you by the -> impeachment of the House of Commons, and do now, according to law, -> proceed to _judgment_ against you, which I am ordered to pronounce. -> Their lordships’ _judgment_ is, and this high court doth adjudge, -> that you, Thomas, Earl of Macclesfield, be fined in the sum of thirty -> thousand pounds unto our sovereign lord the king; and that you shall -> be imprisoned in the tower of London, and there kept in safe custody, -> until you shall pay the said fine.’”—_6 Hargrave’s State Trials_, -> 762-3-4. - -This case shows that the principle of Magna Carta, that a man should be -_sentenced only_ by his peers, was in force, and acted upon as law, in -England, so lately as 1725, (five hundred years after Magna Carta,) so -far as it applied to a _peer of the realm_. - -But the same principle, on this point, that applies to a peer of the -realm, applies to every freeman. The only difference between the two is, -that the peers of the realm have had influence enough to preserve their -constitutional rights; while the constitutional rights of the people -have been trampled upon and rendered obsolete by the usurpation and -corruption of the government and the courts. - - -## The Oaths of Judges - -As further proof that the legislation of the king, whether enacted with -or without the assent and advice of his parliaments, was of no authority -unless it were consistent with the _common law_, and unless juries and -judges saw fit to enforce it, it may be mentioned that it is probable -that no judge in England was ever sworn to observe the laws enacted -either by the king alone, or by the king with the advice and assent of -parliament. - -The judges were sworn to “_do equal law, and execution of right, to all -the king’s subjects, rich and poor, without having regard to any -person_;” and that they will “_deny no man common right_;”[^59] but they -were _not_ sworn to obey or execute any statutes of the king, or of the -king and parliament. Indeed, they are virtually sworn _not_ to obey any -statutes that are against “_common right_,” or contrary to “_the common -law_,” or “_law of the land_;” but to “certify the king thereof”—that -is, notify him that his statutes are against the common law;—and then -proceed to execute the _common law_, notwithstanding such legislation to -the contrary. The words of the oath on this point are these: - -> “_That ye deny no man common right by (virtue of) the king’s letters, -> nor none other man’s, nor for none other cause; and in case any -> letters come to you contrary to the law_, (that is, the common law, -> as will be seen on reference to the entire oath given in the note,) -> _that ye do nothing by such letters, but certify the king thereof -> and proceed to execute the law_, (that is, the common law,) -> _notwithstanding the same letters_.” - -When it is considered that the king was the sole legislative power, and -that he exercised this power, to a great extent, by orders in council, -and by writs and “letters” addressed often-times to some sheriff, or -other person, and that his commands, when communicated to his justices, -or any other person, “by letters,” or writs, _under seal_, had as much -legal authority as laws promulgated in any other form whatever, it will -be seen that this oath of the justices _absolutely required_ that they -disregard any legislation that was contrary to “_common right_,” or -“_the common law_,” and notify the king that it was contrary to common -right, or the common law, and then proceed to execute the common law, -notwithstanding such legislation.[^60] - -If there could be any doubt that such was the meaning of this oath, that -doubt would be removed by a statute passed by the king two years -afterwards, which fully explains this oath, as follows: - -> “Edward, by the Grace of God, &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 our oath are bound -> to maintain_, is the less well kept, and the execution of the same -> disturbed many times by maintenance and procurement, as well in the -> court as in the country; we greatly moved of conscience in this -> matter, and for this cause desiring as much for the pleasure of God, -> and ease and quietness of our subjects, as to save our conscience, -> and for to save and keep our said oath, by the assent of the great -> men and other wise men of our council, we have ordained these things -> following: - -> “First, we have commanded all our justices, that they shall from -> henceforth _do equal law and execution of right_ to all our subjects, -> rich and poor, without having regard to any person, _and without -> omitting to do right for any letters or commandment which may come to -> them from us, or from any other, or by any other cause. And if that -> any letters, writs, or commandments come to the justices, or to other -> deputed to do law and right according to the usage of the realm, in -> disturbance of the law, or of the execution of the same, or of right -> to the parties, the justices and other aforesaid shall proceed and -> hold their courts and processes, where the pleas and matters be -> depending before them, as if no such letters, writs, or commandments -> were come to them; and they shall certify us and our council of such -> commandments which be contrary to the law_, (that is, “the law of the -> land,” or common law,) _as afore is said_.[^61] And to the intent that -> our justices shall do even right to all people in the manner -> aforesaid, without more favor showing to one than to another, we have -> ordained and caused our said justices to be sworn, that they shall -> not from henceforth, as long as they shall be in the office of -> justice, take fee nor robe of any man, but of ourself, and that they -> shall take no gift nor reward by themselves, nor by other, privily -> nor apertly, of any man that hath to do before them by any way, -> except meat and drink, and that of small value; and that they shall -> give no counsel to great men or small, in case where we be party, or -> which do or may touch us in any point, upon pain to be at our will, -> body, lands, and goods, to do thereof as shall please us, in case -> they do contrary. And for this cause we have increased the fees of -> the same, our justices, in such manner as it ought reasonably to -> suffice them.”—_20 Edward III._, ch. 1. (1346.) - -Other statutes of similar tenor have been enacted, as follows: - -> “It is accorded and established, that it shall not be commanded by -> the great seal, nor the little seal, to disturb or delay _common -> right_; and though such commandments do come, the justices shall not -> therefore leave (omit) to do right in any point.”—_St. 2 Edward -> III._, ch. 8. (1328.) - -> “That by commandment of the great seal, or privy seal, no point of -> this statute shall be put in delay; nor that the justices of -> whatsoever place it be shall let (omit) to do the _common law_, by -> commandment, which shall come to them under the great seal, or the -> privy seal.”—_14 Edward III._, st. 1, ch. 14. (1340.) - -> “It is ordained and established, that neither letters of the signet, -> nor of the king’s privy seal, shall be from henceforth sent in damage -> or prejudice of the realm, nor in disturbance of the law” (the common -> law).—_11 Richard II._, ch. 10. (1387.) - -It is perfectly apparent from these statutes, and from the oath -administered to the justices, that it was a matter freely confessed by -the king himself, that his statutes were of no validity, if contrary to -the common law, or “common right.” - -The oath of the justices, before given, is, I presume, the same that has -been administered to judges in England from the day when it was first -prescribed to them, (1344,) until now. I do not find from the English -statutes that the oath has ever been changed. The Essay on Grand Juries, -before referred to, and supposed to have been written by _Lord Somers_, -mentions this oath (page 73) as being still administered to judges, that -is, in the time of Charles II., more than three hundred years after the -oath was first ordained. If the oath has never been changed, it follows -that judges have not only never been sworn to support any statutes -whatever of the king, or of parliament, but that, for five hundred -years past, they actually have been sworn to treat as invalid all -statutes that were contrary to the common law. - - -## The Coronation Oath - -That the legislation of the king was of no authority over a jury, is -further proved by the oath taken by the kings at their coronation. This -oath seems to have been substantially the same, from the time of the -_Saxon_ kings, down to the seventeenth century, as will be seen from the -authorities hereafter given. - -The purport of the oath is, that the king swears _to maintain the law of -the land_—that is, _the common law_. In other words, he swears “_to -concede and preserve to the English people the laws and customs conceded -to them by the ancient, just, and pious English kings, * * and -especially the laws, customs, and liberties conceded to the clergy and -people by the illustrious king Edward;” * * and “the just laws and -customs which the common people have chosen, (quas vulgus elegit)_.” - -These are the same laws and customs which were called by the general -name of “_the law of the land_,” or “_the common law_,” and, with some -slight additions, were embodied in _Magna Carta_. - -This oath not only forbids the king to enact any statutes contrary to -the common law, but it proves that his statutes could be of no authority -over the consciences of a jury; since, as has already been sufficiently -shown, it was one part of this very common law itself,—that is, of the -ancient “laws, customs, and liberties,” mentioned in the oath,—that -juries should judge of all questions that came before them, according to -their own consciences, independently of the legislation of the king. - -It was impossible that this right of the jury could subsist consistently -with any right, on the part of the king, to impose any authoritative -legislation upon them. His oath, therefore, to maintain the law of the -land, or the ancient “laws, customs, and liberties,” was equivalent to -an oath that he would never _assume_ to impose laws upon juries, as -imperative rules of decision, or take from them the right to try all -cases according to their own consciences. It is also an admission that -he had no constitutional power to do so, if he should ever desire it. -This oath, then, is conclusive proof that his legislation was of no -authority with a jury, and that they were under no obligation whatever -to enforce it, unless it coincided with their own ideas of justice. - -The ancient coronation oath is printed with the Statutes of the Realm, -vol. i., p. 168, and is as follows:[^62] - -TRANSLATION. - -> “_Form of the Oath of the King of England, on his Coronation._ - -> (The Archbishop of Canterbury, to whom, of right and custom of the -> Church of Canterbury, ancient and approved, it pertains to anoint and -> crown the kings of England, on the day of the coronation of the king, -> and before the king is crowned, shall propound the underwritten -> questions to the king.) - -> The laws and customs, conceded to the English people by the ancient, -> just, and pious English kings, will you concede and preserve to the -> same people, with the confirmation of an oath? and especially the -> laws, customs, and liberties conceded to the clergy and people by the -> illustrious king Edward? - -> (And the king shall answer,) I do concede, and will preserve them, -> and confirm them by my oath. - -> Will you preserve to the church of God, the clergy, and the people, -> entire peace and harmony in God, according to your powers? - -> (And the king shall answer,) I will. - -> In all your judgments, will you cause equal and right justice and -> discretion to be done, in mercy and truth, according to your powers? - -> (And the king shall answer,) I will. - -> Do you concede that the just laws and customs, _which the common -> people have chosen_, shall be preserved; and do you promise that they -> shall be protected by you, and strengthened to the honor of God, -> according to your powers? - -> (And the king shall answer,) I concede and promise.” - -The language used in the last of these questions, “Do you concede that -the just laws and customs, _which the common people have chosen_, (_quas -vulgus elegit_,) shall be preserved?” &c., is worthy of especial notice, -as showing that the laws, which were to be preserved, were not -necessarily _all_ the laws which the kings enacted, _but only such of -them as the common people had selected or approved_. - -And how had the common people made known their approbation or selection -of these laws? Plainly, in no other way than this—_that the juries -composed of the common people had voluntarily enforced them_. The common -people had no other legal form of making known their approbation of -particular laws. - -The word “concede,” too, is an important word. In the English statutes -it is usually translated _grant_—as if with an intention to indicate -that “the laws, customs, and liberties” of the English people were mere -_privileges, granted_ to them by the king; whereas it should be -translated _concede_, to indicate simply an _acknowledgment_, on the -part of the king, that such were the laws, customs, and liberties, which -had been chosen and established by the people themselves, and of right -belonged to them, and which he was bound to respect. - -I will now give some authorities to show that the foregoing oath has, -_in substance_, been the coronation oath from the times of William the -Conqueror, (1066,) down to the time of James the First, and probably -until 1688. - -It will be noticed, in the quotation from Kelham, that he says this oath -(or the oath of William the Conqueror) is “in sense and substance the -very same with that which the _Saxon_ kings used to take at their -coronations.” - -Hale says: - -> “Yet the English were very zealous for them,” (that is, for the laws -> of Edward the Confessor,) “no less or otherwise than they are at this -> time for the Great Charter; insomuch that they were never satisfied -> till the said laws were reënforced, and mingled, for the most part, -> with the coronation oath of king William I., and some of his -> successors.”—_1 Hale’s History of Common Law_, 157. - -> Also, “William, on his coronation, had sworn to govern by the laws of -> Edward the Confessor, some of which had been reduced into writing, -> but the greater part consisted of the immemorial customs of the -> realm.”—_Ditto_, p. 202, note L. - -Kelham says: - -> “Thus stood the laws of England at the entry of William I., and it -> seems plain that the laws, commonly called the laws of Edward the -> Confessor, were at that time the standing laws of the kingdom, and -> considered the great rule of their rights and liberties; and that the -> English were so zealous for them, ‘that they were never satisfied -> till the said laws were reënforced, and mingled, for the most part, -> with the coronation oath.’ Accordingly, we find that this great -> conqueror, at his coronation on the Christmas day succeeding his -> victory, took an oath at the altar of St. Peter, Westminster, _in -> sense and substance the very same with that which the Saxon kings -> used to take at their coronations_. * * And at Barkhamstead, in the -> fourth year of his reign, in the presence of Lanfranc, Archbishop of -> Canterbury, for the quieting of the people, he swore that he would -> inviolably observe the good and approved ancient laws which had been -> made by the devout and pious kings of England, his ancestors, and -> chiefly by King Edward; and we are told that the people then departed -> in good humor.”—_Kelham’s Preliminary Discourse to the Laws of -> William the Conqueror._ See, also, _1 Hale’s History of the Common -> Law_, 186. - -Crabbe says that William the Conqueror “solemnly swore that he would -observe the good and approved laws of Edward the Confessor.”—_Crabbe’s -History of the English Law_, p. 43. - -The successors of William, up to the time of Magna Carta, probably all -took the same oath, according to the custom of the kingdom; although -there may be no historical accounts extant of the oath of each separate -king. But history tells us specially that Henry I., Stephen, and Henry -II., confirmed these ancient laws and customs. It appears, also, that -the barons desired of John (what he afterwards granted by Magna Carta) -“_that the laws and liberties of King Edward_, with other privileges -granted to the kingdom and church of England, might be confirmed, as -they were contained in the charters of Henry the First; further -alleging, _that at the time of his absolution, he promised by his oath -to observe these very laws and liberties_.”—_Echard’s History of -England_, p. 105-6. - -It would appear, from the following authorities, that since Magna Carta -the form of the coronation oath has been “_to maintain the law of the -land_,”—meaning that law as embodied in Magna Carta. Or perhaps it is -more probable that the ancient form has been still observed, but that, -as its substance and purport were “_to maintain the law of the land_,” -this latter form of expression has been used, in the instances here -cited, from motives of brevity and convenience. This supposition is the -more probable, from the fact that I find no statute prescribing a change -in the form of the oath until 1688. - -That Magna Carta was considered as embodying “the law of the land,” or -“common law,” is shown by a statute passed by Edward I., wherein he -“grants,” or concedes, - -> “That the Charter of Liberties and the Charter of the Forest * * -> shall be kept in every point, without breach, * * and that our -> justices, sheriffs, mayors, and other ministers, which, under us, -> have the _laws of our land_[^63] to guide, shall allow the said -> charters pleaded before them in judgment, in all their points, that -> is, to wit, _the Great Charter as the Common Law_, and the Charter of -> the Forest for the wealth of the realm. - -> “And we will, that if any judgment be given from henceforth, contrary -> to the points of the charters aforesaid, by the justices, or by any -> other our ministers that hold plea before them against the points of -> the charters, it shall be undone, and holden for naught.”—_25 Edward -> I._, ch. 1 and 2. (1297.) - -Blackstone also says: - -> “It is agreed by all our historians that the Great Charter of King -> John was, for the most part, _compiled from the ancient customs of -> the realm, or the laws of Edward the Confessor; by which they usually -> mean the old common law which was established under our Saxon -> princes_.”—_Blackstone’s Introduction to the Charters._ See -> _Blackstone’s Law Tracts_, 289. - -Crabbe says: - -> “It is admitted, on all hands, that it (Magna Carta) contains nothing -> but what was confirmatory of the common law, and the ancient usages -> of the realm, and is, properly speaking, only an enlargement of the -> charter of Henry I., and his successors.”—_Crabbe’s History of the -> English Law_, p. 127. - -That the coronation oath of the kings subsequent to Magna Carta was, in -substance, if not in form, “_to maintain this law of the land, or common -law_,” is shown by a statute of Edward Third, commencing as follows: - -> “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._ (1346.) - -The following extract from Lord Somers’ tract on Grand Juries shows that -the coronation oath continued the same as late as 1616, (four hundred -years after Magna Carta.) He says: - -> “King James, in his speech to the judges, in the Star Chamber, Anno -> 1616, told them, ‘That he had, after many years, resolved to renew -> his oath, made at his coronation, concerning justice, and the promise -> therein contained for _maintaining the law of the land_.’ And, in the -> next page save one, says, ‘_I was sworn to maintain the law of the -> land_, and therefore had been perjured if I had broken it. God is my -> judge, I never intended it.’”—_Somers on Grand Juries_, p. 82. - -In 1688, the coronation oath was changed by act of Parliament, and the -king was made to swear: - -> “To govern the people of this kingdom of England, and the dominions -> thereto belonging, _according to the statutes in Parliament agreed -> on, and the laws and customs of the same_.”—_St. 1 William and -> Mary_, ch. 6. (1688.) - -The effect and legality of this oath will hereafter be considered. For -the present it is sufficient to show, as has been already sufficiently -done, that from the Saxon times until at least as lately as 1616, the -coronation oath has been, in substance, _to maintain the law of the -land, or the common law_, meaning thereby the ancient Saxon customs, as -embodied in the laws of Alfred, of Edward the Confessor, and finally in -Magna Carta. - -It may here be repeated that this oath plainly proves that the statutes -of the king were of no authority over juries, if inconsistent with their -ideas of right; because it was one part of the common law that juries -should try all causes according to their own consciences, any -legislation of the king to the contrary notwithstanding.[^64] - -[^34]: Hale says: - - > “The trial by jury of twelve men was the usual trial among the - > Normans, in most suits; especially in assizes, et juris utrum.”—_1 - > Hale’s History of the Common Law_, 219. - - This was in Normandy, before the conquest of England by the Normans. - _See Ditto_, p. 218. - - Crabbe says: - - > “It cannot be denied that the practice of submitting causes to the - > decision of twelve men was universal among all the northern tribes - > (of Europe) from the very remotest antiquity.”—_Crabbe’s History of - > the English Law_, p. 32. - -[^35]: “The people, who in every general council or assembly - could oppose and dethrone their sovereigns, were in little dread of - their encroachments on their liberties; and kings, who found sufficient - employment in keeping possession of their crowns, would not likely - attack the more important privileges of their subjects.” - -[^36]: This office was afterwards committed to sheriffs. But even - while the court was held by the lord, “_the Lord was not judge, but the - Pares (peers) only_.”—_Gilbert on the Court of Exchequer_, 61-2. - -[^37]: The opinion expressed in the text, that the Witan had no - legislative authority, is corroborated by the following authorities: - - “From the fact that the new laws passed by the king and the Witan were - laid before the shire-mote, (county court,) we should be almost - justified in the inference that a second sanction was necessary before - they could have the effect of law in that particular county.”—_Dunham’s - Middle Ages, Sec._ 2, _B._ 2, _Ch._ 1. _57 Lardner’s Cab. Cyc._, 53. - - The “_second sanction_” required to give the legislation of the king and - Witan the effect of law, was undoubtedly, I think, _as a general thing, - the sanction of a jury_. I know of no evidence whatever that laws were - ever submitted to popular vote in the county courts, as this author - seems to suppose possible. Another mode, sometimes resorted to for - obtaining the sanction of the people to the laws of the Witan, was, it - seems, to persuade the people themselves to swear to observe them. - Mackintosh says: - - “The preambles of the laws (of the Witan) speak of the infinite number - of _liegemen_ who attended, as only applauding the measures of the - assembly. But this applause was neither so unimportant to the success of - the measures, nor so precisely distinguished from a share in - legislation, as those who read history with a modern eye might imagine. - It appears that under Athelstan expedients were resorted to, to obtain a - consent to the law from great bodies of the people in their districts, - which their numbers rendered impossible in a national assembly. That - monarch appears to have sent commissioners to hold _shire-gemotes_ or - county meetings, where they proclaimed the laws made by the king and his - counsellors, which, being acknowledged and sworn to at these - _folk-motes_ (meetings of the people) became, by their assent, - completely binding on the whole nation.”—_Mackintosh’s Hist. of - England_, _Ch._ 2. _45 Lardner’s Cab. Cyc._, 75. - -[^38]: Page 31. - -[^39]: Hallam says, “It was, however, to the county court that an - English freeman chiefly looked for the maintenance of his civil - rights.”—_2 Middle Ages_, 392. - - Also, “This (the county court) was the great constitutional judicature - in all questions of civil right.”—_Ditto_, 395. - - Also, “The liberties of these Anglo-Saxon thanes were chiefly secured, - next to their swords and their free spirits, by the inestimable right of - deciding civil and criminal suits in their own county courts.”—_Ditto_, - 399. - -[^40]: “Alfred may, in one sense, be called the founder of these - laws, (the Saxon,) for until his time they were an unwritten code, but - he expressly says, ‘_that I, Alfred, collected the good laws of our - forefathers into one code, and also I wrote them down_’—which is a - decisive fact in the history of our laws well worth noting.”—_Introduction - to Gilbert’s History of the Common Pleas_, p. 2, _note_. - - Kelham says, “Let us consult our own lawyers and historians, and they - will tell us * * that Alfred, Edgar, and Edward the Confessor, were the - great _compilers and restorers_ of the English Laws.”—_Kelham’s - Preliminary Discourse to the Laws of William the Conqueror_, p. 12. - _Appendix to Kelham’s Dictionary of the Norman Language._ - - “He (Alfred) also, like another Theodosius, _collected the various - customs_ that he found dispersed in the kingdom, and reduced and - digested them into one uniform system, or code of laws, in his - _som-bec_, or _liber judicialis_ (judicial book). This he _compiled_ for - the use of the court baron, hundred and county court, the court-leet and - sheriff’s tourn, tribunals which he established for the trial of all - causes, civil and criminal, in the very districts wherein the complaints - arose.”—_4 Blackstone_, 411. - - Alfred himself says, “Hence I, King Alfred, gathered these together, and - commanded many of those to be written down which our forefathers - observed—those which I liked—and those which I did not like, by the - advice of my Witan, I threw aside. For I durst not venture to set down - in writing over many of my own, since I knew not what among them would - please those that should come after us. But those which I met with - either of the days of me, my kinsman, or of Offa, King of Mercia, or of - Æthelbert, who was the first of the English who received baptism—those - which appeared to me the justest—I have here collected, and abandoned - the others. Then I, Alfred, King of the West Saxons, showed these to all - my Witan, and they then said that they were all willing to observe - them.”—_Laws of Alfred, translated by R. Price, prefixed to - Mackintosh’s History of England_, _vol._ 1. _45 Lardner’s Cab. Cyc._ - - “King Edward * * projected and begun what his grandson, King Edward the - Confessor, afterwards completed, viz., one uniform digest or body of - laws to be observed throughout the whole kingdom, _being probably no - more than a revival of King Alfred’s code_, with some improvements - suggested by necessity and experience, particularly the incorporating - some of the British, or, rather, Mercian _customs_, and also _such of - the Danish_ (customs) as were reasonable and approved, into the _West - Saxon Lage_, which was still the ground-work of the whole. And this - appears to be the best supported and most plausible conjecture, (for - certainty is not to be expected,) of the rise and original of that - admirable system of maxims and unwritten customs which is now known by - the name of the _common law_, as extending its authority universally - over all the realm, and which is doubtless of Saxon parentage.”—_4 - Blackstone_, 412. - - “By the _Lex Terræ_ and _Lex Regni_ is understood the laws of Edward the - Confessor, confirmed and enlarged as they were by William the Conqueror; - and this Constitution or Code of Laws is what even to this day are - called ‘_The Common Law of the Land_.’”—_Introduction to Gilbert’s - History of the Common Pleas_, p. 22, _note_. - -[^41]: Not the conqueror of the English people, (as the friends - of liberty maintain,) but only of Harold the usurper.—See _Hale’s - History of the Common Law_, ch. 5. - -[^42]: For all these codes see Wilkins’ Laws of the Anglo-Saxons. - - “Being regulations adapted to existing institutions, the Anglo-Saxon - statutes are concise and technical, alluding to the law which was then - living and in vigor, rather than defining it. The same clauses and - chapters are often repeated word for word, in the statutes of subsequent - kings, showing that enactments which bear the appearance of novelty are - merely declaratory. Consequently the appearance of a law, seemingly for - the first time, is by no means to be considered as a proof that the - matter which it contains is new; nor can we trace the progress of the - Anglo-Saxon institutions with any degree of certainty, by following the - dates of the statutes in which we find them first noticed. All arguments - founded on the apparent chronology of the subjects included in the laws, - are liable to great fallacies. Furthermore, a considerable portion of - the Anglo-Saxon law was never recorded in writing. There can be no doubt - but that the rules of inheritance were well established and defined; yet - we have not a single law, and hardly a single document from which the - course of the descent of land can be inferred. * * Positive proof cannot - be obtained of the commencement of any institution, because the first - written law relating to it may possibly be merely confirmatory or - declaratory; neither can the non-existence of any institution be - inferred from the absence of direct evidence. Written laws were modified - and controlled by customs of which no trace can be discovered, until - after the lapse of centuries, although those usages must have been in - constant vigor during the long interval of silence.”—_1 Palgrave’s Rise - and Progress of the English Commonwealth_, 58-9. - -[^43]: Rapin says, “The customs now practised in England are, for - the most part, the same as the Anglo-Saxons brought with them from - Germany.”—_Rapin’s Dissertation on the Government of the Anglo-Saxons_, - vol. 2, Oct. Ed., p. 198. See _Kelham’s Discourse before named_. - -[^44]: Hallam says, “The county of Sussex contains sixty-five - (‘hundreds’); that of Dorset forty-three; while Yorkshire has only - twenty-six; and Lancashire but six.”—_2 Middle Ages_, 391. - -[^45]: Excepting also matters pertaining to the collection of the - revenue, which were determined in the king’s court of exchequer. But - even in this court it was the law “_that none be amerced but by his - peers_.”—_Mirror of Justices_, 49. - -[^46]: “For the English laws, _although not written_, may, as it - should seem, and that without any absurdity, be termed laws, (since this - itself is law—that which pleases the prince has the force of law,) I - mean those laws which it is evident were promulgated by the advice of - the nobles and the authority of the prince, concerning doubts to be - settled in their assembly. For if from the mere want of writing only, - they should not be considered laws, then, unquestionably, writing would - seem to confer more authority upon laws themselves, than either the - equity of the persons constituting, or the reason of those framing - them.”—_Glanville’s Preface_, p. 38. (Glanville was chief justice of - Henry II., 1180.) _2 Turner’s History of the Anglo-Saxons_, 280. - -[^47]: Mackintosh’s History of England, ch. 3. Lardner’s Cabinet - Cyclopædia, 266. - -[^48]: If the laws of the king were received as authoritative by - the juries, what occasion was there for his appointing special - commissioners for the trial of offences, without the intervention of a - jury, as he frequently did, in manifest and acknowledged violation of - Magna Carta, and “the law of the land?” These appointments were - undoubtedly made for no other reason than that the juries were not - sufficiently subservient, but judged according to their own notions of - right, instead of the will of the king—whether the latter were - expressed in his statutes, or by his judges. - -[^49]: Of course, Mr. Reeve means to be understood that, in the - hundred court, and court-leet, _the jurors were the judges_, as he - declares them to have been in the county court; otherwise the “bailiff” - or “steward” must have been judge. - -[^50]: The jurors were sometimes called “assessors,” because they - assessed, or determined the amount of fines and amercements to be - imposed. - -[^51]: “The barons of the Hundred” were the freeholders. Hallam - says: “The word _baro_, originally meaning only a man, was of very large - significance, and is not unfrequently applied to common freeholders, as - in the phrase _court-baron_.”—_3 Middle Ages_, 14-15. - - _Blackstone_ says: “The _court-baron_ * * is a court of common law, and - it is the court of the barons, by which name the freeholders were - sometimes anciently called; for that it is held before the freeholders - who owe suit and service to the manor.”—_3 Blackstone_, 33. - -[^52]: The ancient jury courts kept no records, because those who - composed the courts could neither make nor read records. Their decisions - were preserved by the memories of the jurors and other persons present. - -[^53]: Stuart says: - - “The courts, or civil arrangements, which were modelled in Germany, - preserved the independence of the people; and having followed the Saxons - into England, and continuing their importance, they supported the envied - liberty we boast of. * * - - “As a chieftain led out his retainers to the field, and governed them - during war; so in peace he summoned them together, and exerted a civil - jurisdiction. He was at once their captain and their judge. They - constituted his court; and having inquired with him into the guilt of - those of their order whom justice had accused, they assisted him to - enforce his decrees. - - “This court (the court-baron) was imported into England; but the - innovation which conquest introduced into the fashion of the times - altered somewhat its appearance. * * - - “The head or lord of the manor called forth his attendants to his hall. - * * He inquired into the breaches of custom, and of justice, which were - committed within the precincts of his territory; and with his followers, - _who sat with him as judges_, he determined in all matters of debt, and - of trespass to a certain amount. He possessed a similar jurisdiction - with the chieftain in Germany, and his tenants enjoyed an equal - authority with the German retainers. - - “But a mode of administration which intrusted so much power to the great - could not long be exercised without blame or injustice. The German, - guided by the candor of his mind, and entering into all his engagements - with the greatest ardor, perceived not, at first, that the chieftain to - whom he submitted his disputes might be swayed, in the judgments he - pronounced, by partiality, prejudice, or interest; and that the - influence he maintained with his followers was too strong to be - restrained by justice. Experience instructed him of his error; he - acknowledged the necessity of appealing from his lord; and the court of - the Hundred was erected. - - “This establishment was formed both in Germany and England, by the - inhabitants of a certain division, who extended their jurisdiction over - the territory they occupied.[^65] They bound themselves under a penalty - to assemble at stated times; _and having elected the wisest to preside - over them, they judged, not only all civil and criminal matters_, but of - those also which regarded religion and the priesthood. The judicial - power thus invested in the people was extensive; they were able to - preserve their rights, and attended this court in arms. - - “As the communication, however, and intercourse, of the individuals of a - German community began to be wider, and more general, as their dealings - enlarged, and as disputes arose among the members of different hundreds, - the insufficiency of these courts for the preservation of order was - gradually perceived. The _shyre mote_, therefore, or _county court_, was - instituted; and it formed the chief source of justice both in Germany - and England. - - “The powers, accordingly, which had been enjoyed by the court of the - _hundred_, were considerably impaired. It decided no longer concerning - capital offences; it decided not concerning matters of liberty, and the - property of estates, or of slaves; its judgments, in every case, became - subject to review; and it lost entirely the decision of causes, when it - delayed too long to consider them. - - “Every subject of claim or contention was brought, in the first - instance, or by appeal, to the _county court_; and the _earl_, or - _eorldorman_, who presided there, was active to put the laws in - execution. He repressed the disorders which fell out within the circuit - of his authority; and the least remission in his duty, or the least - fraud he committed, was complained of and punished. He was elected from - among the great, and was above the temptation of a bribe; but, to - encourage his activity, he was presented with a share of the territory - he governed, or was entitled to a proportion of the fines and profits of - justice. Every man, in his district, was bound to inform him concerning - criminals, and to assist him to bring them to trial; and, as in rude and - violent times the poor and helpless were ready to be oppressed by the - strong, he was instructed particularly to defend them. - - “His court was ambulatory, and assembled only twice a year, unless the - distribution of justice required that its meetings should be oftener. - Every freeholder in the county was obliged to attend it; and should he - refuse this service, his possessions were seized, and he was forced to - find surety for his appearance. The neighboring earls held not their - courts on the same day; and, what seems very singular, no judge was - allowed, after meals, to exercise his office. - - “The druids also, or priests, in Germany, as we had formerly occasion to - remark, and the clergy in England, exercised a jurisdiction in the - _hundred_ and _county_ courts. They instructed the people in religious - duties, and in matters regarding the priesthood; and the princes, earls, - or _eorldormen_, related to them the laws and customs of the community. - These judges were mutually a check to each other; but it was expected - that they should agree in their judgments, and should willingly unite - their efforts for the public interest.[^66] - - “_But the prince or earl performed not, at all times, in person, the - obligations of his office._ The enjoyment of ease and of pleasure, to - which in Germany he had delivered himself over, when disengaged from - war, and the mean idea he conceived of the drudgery of civil affairs, - _made him often delegate to an inferior person the distribution of - justice in his district_. The same sentiments were experienced by the - Saxon nobility; and the service which they owed by their tenures, and - the high employments they sustained, called them often from the - management of their counties. The progress, too, of commerce, giving an - intricacy to cases, and swelling the civil code, added to the difficulty - of their office, and made them averse to its duties. _Sheriffs, - therefore, or deputies, were frequently appointed to transact their - business; and though these were at first under some subordination to the - earls, they grew at length to be entirely independent of them. The - connection of jurisdiction and territory ceasing to prevail, and the - civil being separated from the ecclesiastical power, they became the - sole and proper officers for the direction of justice in the counties._ - - “The _hundred_, however, and _county_ courts, were not equal of - themselves for the purposes of jurisdiction and order. It was necessary - that a court should be erected, of supreme authority, where the disputes - of the great should be decided, where the disagreeing sentiments of - judges should be reconciled, and where protection should be given to the - people against their fraud and injustice. - - “The princes accordingly, or chief nobility, in the German communities, - assembled together to judge of such matters. The Saxon nobles continued - this prerogative; and the king, or, in his absence, the chief - _justiciary_, watched over their deliberations. But it was not on every - trivial occasion that this court interested itself. In smaller concerns, - justice was refused during three sessions of the _hundred_, and claimed - without effect, at four courts of the county, before there could lie an - appeal to it. - - “So gradually were these arrangements established, and so naturally did - the varying circumstances in the situation of the Germans and - Anglo-Saxons direct those successive improvements which the preservation - of order, and the advantage of society, called them to adopt. The - admission of the people into the courts of justice preserved, among the - former, that equality of ranks for which they were remarkable; and it - helped to overturn, among the latter, those envious distinctions which - the feudal system tended to introduce, and prevented that venality in - judges, and those arbitrary proceedings, which the growing attachment to - interest, and the influence of the crown, might otherwise have - occasioned.”—_Stuart on the Constitution of England_, p. 222 to 245. - - “In the Anglo-Saxon period, accordingly, _twelve_ only were elected; and - these, together with the judge, or presiding officer of the district, - being sworn to regard justice, and the voice of reason, or conscience, - all causes were submitted to them.”—_Ditto_, p. 260. - - “Before the orders of men were very nicely distinguished, the jurors - were elected from the same rank. When, however, a regular subordination - of orders was established, and when a knowledge of property had inspired - the necessitous with envy, and the rich with contempt, _every man was - tried by his equals_. The same spirit of liberty which gave rise to this - regulation attended its progress. Nor could monarchs assume a more - arbitrary method of proceeding. ‘I will not’ (said the Earl of Cornwall - to his sovereign) ‘render up my castles, nor depart the kingdom, but by - judgment of my peers.’ Of this institution, so wisely calculated for the - preservation of liberty, all our historians have pronounced the - eulogium.”—_Ditto_, p. 262-3. - - Blackstone says: - - “The policy of our ancient constitution, as regulated and established by - the great Alfred, was to bring justice home to every man’s door, by - constituting as many courts of judicature as there are manors and towns - in the kingdom; _wherein injuries were redressed in an easy and - expeditious manner, by the suffrage of neighbors and friends_. These - little courts, however, communicated with others of a larger - jurisdiction, and those with others of a still greater power; ascending - gradually from the lowest to the supreme courts, which were respectively - constituted to correct the errors of the inferior ones, and to determine - such causes as, by reason of their weight and difficulty, demanded a - more solemn discussion. The course of justice flowing in large streams - from the king, as the fountain, to his superior courts of record; and - being then subdivided into smaller channels, till the whole and every - part of the kingdom were plentifully watered and refreshed. An - institution that seems highly agreeable to the dictates of natural - reason, as well as of more enlightened policy. * * - - “These inferior courts, at least the name and form of them, still - continue in our legal constitution; but as the superior courts of record - have, in practice, obtained a concurrent original jurisdiction, and as - there is, besides, a power of removing plaints or actions thither from - all the inferior jurisdictions; upon these accounts (among others) it - has happened that these petty tribunals have fallen into decay, and - almost into oblivion; whether for the better or the worse may be matter - of some speculation, when we consider, on the one hand, the increase of - expense and delay, and, on the other, the more able and impartial - decisions that follow from this change of jurisdiction. - - “The order I shall observe in discoursing on these several courts, - constituted for the redress of _civil_ injuries, (for with those of a - jurisdiction merely _criminal_ I shall not at present concern - myself,[^67]) will be by beginning with the lowest, and those whose - jurisdiction, though public and generally dispersed through the kingdom, - is yet (with regard to each particular court) confined to very narrow - limits; and so ascending gradually to those of the most extensive and - transcendent power.”—3 _Blackstone_, 30 to 32. - - “The _court-baron_ is a court incident to every manor in the kingdom, - _to be holden by the steward within the said manor_. This court-baron is - of two natures; the one is a customary court, of which we formerly - spoke, appertaining entirely to the copy-holders, in which their estates - are transferred by surrender and admittance, and other matters - transacted relative to their tenures only. The other, of which we now - speak, is a court of common law, and it is a court of the barons, by - which name the freeholders were sometimes anciently called; _for that it - is held by the freeholders who owe suit and service to the manor, the - steward being rather the registrar than the judge_. These courts, though - in their nature distinct, are frequently confounded together. _The court - we are now considering, viz., the freeholders court, was composed of the - lord’s tenants, who were the pares_ (equals) _of each other, and were - bound by their feudal tenure to assist their lord in the dispensation of - domestic justice_. This was formerly held every three weeks; and its - most important business is to determine, by writ of right, all - controversies relating to the right of lands within the manor. It may - also hold plea of any personal actions, of debt, trespass in the case, - or the like, where the debt or damages do not amount to forty shillings; - which is the same sum, or three marks, that bounded the jurisdiction of - the ancient Gothic courts in their lowest instance, or _fierding - courts_, so called because four were instituted within every superior - district or hundred.”—3 _Blackstone_, 33, 34. - - “A _hundred court_ is only a larger court-baron, being held for all the - inhabitants of a particular hundred, instead of a manor. _The free - suitors are here also the judges, and the steward the registrar, as in - the case of a court-baron._ It is likewise no court of record, - resembling the former at all points, except that in point of territory - it is of greater jurisdiction. This is said by Sir Edward Coke to have - been derived out of the county court for the ease of the people, that - they might have justice done to them at their own doors, without any - charge or loss of time; but its institution was probably coeval with - that of hundreds themselves, which were formerly observed to have been - introduced, though not invented, by Alfred, being derived from the - polity of the ancient Germans. The _centeni_, we may remember, were the - principal inhabitants of a district composed of different villages, - originally in number a _hundred_, but afterward only called by that - name, and who probably gave the same denomination to the district out of - which they were chosen. Cæsar speaks positively of the judicial power - exercised in their hundred courts and courts-baron. ‘_Princeps regiorum - atque pagorum_’ (which we may fairly construe the lords of hundreds and - manors) ‘_inter suos jus dicunt, controversias que minuunt_.’ (The - chiefs of the country and the villages declare the law among them, and - abate controversies.) And Tacitus, who had examined their constitution - still more attentively, informs us not only of the authority of the - lords, but that of the _centeni_, the hundreders, or jury, _who were - taken out of the common freeholders, and had themselves a share in the - determination. ‘Eliguntur in conciliis et principes, qui jura per pagos - vicosque reddunt, centeni singulis, ex plebe comites concilium simul et - auctoritas adsunt_.’ (The princes are chosen in the assemblies, who - administer the laws throughout the towns and villages, and with each one - are associated an hundred companions, taken from the people, for - purposes both of counsel and authority.) This hundred court was - denominated _hæreda_ in the Gothic constitution. But this court, as - causes are equally liable to removal from hence as from the common - court-baron, and by the same writs, and may also be reviewed by writ of - false judgment, is therefore fallen into equal disuse with regard to the - trial of actions.”—_3 Blackstone_, 34, 35. - - “The _county court_ is a court incident to the jurisdiction of the - _sheriff_. It is not a court of record, but may hold pleas of debt, or - damages, under the value of forty shillings; over some of which causes - these inferior courts have, by the express words of the statute of - Gloucester, (6 Edward I., ch. 8,) a jurisdiction totally exclusive of - the king’s superior courts. * * The county court may also hold plea of - many real actions, and of all personal actions to any amount, by virtue - of a special writ, called a _justicies_, which is a writ empowering the - sheriff, for the sake of despatch, to do the same justice in his county - court as might otherwise be had at Westminster. _The freeholders of the - county court are the real judges in this court, and the sheriff is the - ministerial officer._ * * In modern times, as proceedings are removable - from hence into the king’s superior courts, by writ of pone or - _recordari_, in the same manner as from hundred courts and courts-baron, - and as the same writ of false judgment may be had in nature of a writ of - error, this has occasioned the same disuse of bringing actions - therein.”—_3 Blackstone_, 36, 37. - - “Upon the whole, we cannot but admire the wise economy and admirable - provision of our ancestors in settling the distribution of justice in a - method so well calculated for cheapness, expedition, and ease. By the - constitution which they established, all trivial debts, and injuries of - small consequence, were to be recovered or redressed in every man’s own - county, hundred, or perhaps parish.”—_3 Blackstone_, 59. - -[^54]: 1 Blackstone, 63-67. - -[^55]: This quaint and curious book (Smith’s Commonwealth of - England) describes the _minutiæ_ of trials, giving in detail the mode of - impanelling the jury, and then the conduct of the lawyers, witnesses, - and court. I give the following extracts, _tending to show that the - judges impose no law upon the juries, in either civil or criminal cases, - but only require them to determine the causes according to their - consciences_. - - In civil causes he says: - - > “When it is thought that it is enough pleaded before them, and the - > witnesses have said what they can, one of the judges, with a brief - > and pithy recapitulation, reciteth to the twelve in sum the arguments - > of the sergeants of either side, that which the witnesses have - > declared, and the chief points of the evidence showed in writing, and - > once again putteth them in mind of the issue, and sometime giveth it - > them in writing, delivering to them the evidence which is showed on - > either part, if any be, (evidence here is called writings of - > contracts, authentical after the manner of England, that is to say, - > written, sealed, and delivered,) and biddeth them go together.”—p. - > 74. - - This is the whole account given of the charge to the jury. - - In criminal cases, after the witnesses have been heard, and the prisoner - has said what he pleases in his defence, the book proceeds: - - > “When the judge hath heard them say enough, he asketh if they can say - > any more: If they say no, then he turneth his speech to the inquest. - > ‘Good men, (saith he,) ye of the inquest, ye have heard what these - > men say against the prisoner. You have also heard what the prisoner - > can say for himself. _Have an eye to your oath, and to your duty, and - > do that which God shall put in your minds to the discharge of your - > consciences_, and mark well what is said.’”—p. 92. - - This is the whole account given of the charge in a criminal case. - - The following statement goes to confirm the same idea, that jurors in - England have formerly understood it to be their right and duty to judge - only according to their consciences, and not to submit to any dictation - from the court, either as to law or fact. - - > “If having pregnant evidence, nevertheless, the twelve do acquit the - > malefactor, which they will do sometime, especially if they perceive - > either one of the justices or of the judges, or some other man, to - > pursue too much and too maliciously the death of the prisoner, * * - > the prisoner escapeth; but the twelve (are) not only rebuked by the - > judges, but also threatened of punishment; and many times commanded - > to appear in the Star-Chamber, or before the Privy Council for the - > matter. But this threatening chanceth oftener than the execution - > thereof; _and the twelve answer with most gentle words, they did it - > according to their consciences_, and pray the judges to be good unto - > them, _they did as they thought right, and as they accorded all_, and - > so it passeth away for the most part.”—p. 100. - - The account given of the trial of a peer of the realm corroborates the - same point: - - > “If any duke, marquis, or any other of the degrees of a baron, or - > above, lord of the Parliament, be appeached of treason, or any other - > capital crime, he is judged by his peers and equals; that is, the - > yeomanry doth not go upon him, but an inquest of the Lords of - > Parliament, and they give their voice not one for all, but each - > severally as they do in Parliament, being (beginning) at the youngest - > lord. And for judge one lord sitteth, who is constable of England for - > that day. The judgment once given, he breaketh his staff, and - > abdicateth his office. In the rest there is no difference from that - > above written,” (that is, in the case of a freeman.)—p. 98. - -[^56]: “The present form of the jurors’ oath is that they shall - ‘give a true verdict _according to the evidence_.’ At what time this - form was introduced is uncertain; but for several centuries after the - Conquest, the jurors, _both in civil and criminal cases_, were sworn - merely to _speak the truth_. (Glanville, lib. 2, cap. 17; Bracton, lib. - 3, cap. 22; lib. 4, p. 287, 291; Britton, p. 135.) Hence their decision - was accurately termed _veredictum_, or verdict, that is, ‘a thing truly - said’; whereas the phrase ‘true verdict’ in the modern oath is not an - accurate expression.”—_Political Dictionary_, word _Jury_. - -[^57]: Of course, there can be no legal trial by jury, in either - civil or criminal cases, where the jury are sworn to try the cases - “_according to law_.” - -[^58]: _Coke_, as late as 1588, admits that amercements must be - fixed by the peers (8 Coke’s Rep. 38, 2 Inst. 27); but he attempts, - wholly without success, as it seems to me, to show a difference between - fines and amercements. The statutes are very numerous, running through - the three or four hundred years immediately succeeding Magna Carta, in - which fines, ransoms, and amercements are spoken of as if they were the - common punishments of offences, and as if they all meant the same thing. - If, however, any technical difference could be made out between them, - there is clearly none in principle; and the word amercement, as used in - Magna Carta, must be taken in its most comprehensive sense. - -[^59]: “_Common right_” was the common law. _1 Coke’s Inst._ 142 - a. 2 _do._ 55, 6. - -[^60]: The oath of the justices is in these words: - - “Ye shall swear, that well and lawfully ye shall serve our lord the king - _and his people_, in the office of justice, and that lawfully ye shall - counsel the king in his business, and that ye shall not counsel nor - assent to anything which may turn him in damage or disherison in any - manner, way, or color. And that ye shall not know the damage or - disherison of him, whereof ye shall not cause him to be warned by - yourself, or by other; _and that ye shall do equal law and execution of - right to all his subjects, rich and poor, without having regard to any - person_. And that ye take not by yourself, or by other, privily nor - apertly, gift nor reward of gold nor silver, nor of any other thing that - may turn to your profit, unless it be meat or drink, and that of small - value, of any man that shall have any plea or process hanging before - you, as long as the same process shall be so hanging, nor after for the - same cause. And that ye take no fee, as long as ye shall be justice, nor - robe of any man great or small, but of the king himself. And that ye - give none advice or counsel to no man great or small, in no case where - the king is party. And in case that any, of what estate or condition - they be, come before you in your sessions with force and arms, or - otherwise against the peace, or against the form of the statute thereof - made, _to disturb execution of the common law_,” (mark the term, - “_common law_,”) “or to menace the people that they may not pursue the - law, that ye shall cause their bodies to be arrested and put in prison; - and in case they be such that ye cannot arrest them, that ye certify the - king of their names, and of their misprision, hastily, so that he may - thereof ordain a convenable remedy. And that ye by yourself, nor by - other, privily nor apertly, maintain any plea or quarrel hanging in the - king’s court, or elsewhere in the country. _And that ye deny no man - common right by the king’s letters, nor none other man’s, nor for none - other cause; and in case any letters come to you contrary to the law,” - (that is, the “common law” before mentioned,) “that ye do nothing by - such letters, but certify the king thereof, and proceed to execute the - law,” (the “common law” before mentioned,) “notwithstanding the same - letters._ And that ye shall do and procure the profit of the king and of - his crown, with all things where ye may reasonably do the same. And in - case ye be from henceforth found in default in any of the points - aforesaid, ye shall be at the king’s will of body, lands, and goods, - thereof to be done as shall please him, as God you help and all - saints.”—_18 Edward III._, st. 4. (1344.) - -[^61]: That the terms “_Law_” and “_Right_,” as used in this - statute, mean the _common law_, is shown by the preamble, which declares - the motive of the statute to be that “_the Law of the Land, (the common - law,) which we (the king) by our oath are bound to maintain_,” may be - the better kept, &c. - -[^62]: The following is a copy of the original: - - > “_Forma Juramenti Regis Angliæ in Coronacione sua_: - - > (Archiepiscopus Cantuariæ, ad quo de jure et consuetudine Ecclesiæ - > Cantuariæ, antiqua et approbata, pertinet Reges Angliæ inungere et - > coronare, die coronacionis Regis, anteque Rex coronetur, faciet Regi - > Interrogationes subscriptas.) - - > Si leges et consuetudines ab antiquis justis et Deo devotis Regibus - > plebi Anglicano concessas, cum sacramenti confirmacione eidem plebi - > concedere et servare (volueris:) Et præsertim leges et consuetudines - > et libertates a glorioso Rege Edwardo clero populoque concessas? - - > (Et respondeat Rex,) Concedo et servare volo, et sacramento - > confirmare. - - > Servabis Ecclesiæ Dei, Cleroque, et Populo, pacem ex integro et - > concordiam in Deo secundum vires tuas? - - > (Et respondeat Rex,) Servabo. - - > Facies fieri in omnibus Judiciis tuis equam et rectam justiciam, et - > discrecionem, in misericordia et veritate, secundum vires tuas? - - > (Et respondeat Rex,) Faciam. - - > Concedis justas, leges et consuetudines esse tenendas, et promittis - > per te eas esse protegendas, et ad honorem Dei corroborandas, quas - > vulgus elegit, secundum vires tuas? - - > (Et respondeat Rex,) Concedo et promitto.” - -[^63]: It would appear, from the text, that the Charter of - Liberties and the Charter of the Forest were sometimes called “_laws of - the land_.” - -[^64]: As the ancient coronation oath, given in the text, has - come down from the Saxon times, the following remarks of Palgrave will - be pertinent, in connection with the oath, as illustrating the fact - that, in those times, no special authority attached to the laws of the - king: - - “The Imperial Witenagemot was not a legislative assembly, in the strict - sense of the term, for the whole Anglo-Saxon empire. Promulgating his - edicts amidst his peers and prelates, the king uses the language of - command; but the theoretical prerogative was modified by usage, and the - practice of the constitution required that the law should be accepted by - the legislatures (courts) of the several kingdoms. * * The ‘Basileus’ - speaks in the tone of prerogative: Edgar does not merely recommend, he - commands that the law shall be adopted by all the people, whether - English, Danes, or Britons, in every part of his empire. Let this - statute be observed, he continues, by Earl Oslac, and all the host who - dwell under his government, and let it be transmitted by writ to the - ealdormen of the other subordinate states. And yet, in defiance of this - positive injunction, the laws of Edgar were not accepted in Mercia until - the reign of Canute the Dane. It might be said that the course so - adopted may have been an exception to the general rule; but in the - scanty and imperfect annals of Anglo-Saxon legislation, we shall be able - to find so many examples of similar proceedings, _that this mode of - enactment must be considered as dictated by the constitution of the - empire_. Edward was the supreme lord of the Northumbrians, but more than - a century elapsed before they obeyed his decrees. The laws of the - glorious Athelstane had no effect in Kent, (county,) the dependent - appanage of his crown, until sanctioned by the _Witan_ of the _shire_ - (county court). And the power of Canute himself, the ‘King of all - England,’ does not seem to have compelled the Northumbrians to receive - his code, until the reign of the Confessor, when such acceptance became - a part of the compact upon the accession of a new earl. - - Legislation constituted but a small portion of the ordinary business - transacted by the Imperial Witenagemot. The wisdom of the assembly was - shown in avoiding unnecessary change. _Consisting principally of - traditionary usages and ancestorial customs, the law was upheld by - opinion. The people considered their jurisprudence as a part of their - inheritance._ Their privileges and their duties were closely conjoined; - _most frequently, the statutes themselves were only affirmances of - ancient customs, or declaratory enactments_. In the Anglo-Saxon - commonwealth, therefore, the legislative functions of the Witenagemot - were of far less importance than the other branches of its authority. * - * The members of the Witenagemot were the ‘Pares Curiæ’ (Peers of Court) - of the kingdom. How far, on these occasions, their opinion or their - equity controlled the power of the crown, cannot be ascertained. But the - form of inserting their names in the _‘Testing Clause_’ was retained - under the Anglo-Norman reigns; and the sovereign, who submitted his - Charter to the judgment of the _Proceres_, professed to be guided by the - opinion which they gave. As the ‘_Pares_’ of the empire, the Witenagemot - decided the disputes between the great vassals of the crown. * * The - jurisdiction exercised in the Parliament of Edward I., when the barony - of a _Lord-Marcher_ became the subject of litigation, is entirely - analogous to the proceedings thus adopted by the great council of - Edward, the son of Alfred, the Anglo-Saxon king. - - In this assembly, the king, the prelates, the dukes, the ealdormen, and - the optimates passed judgment upon all great offenders. * * - - _The sovereign could not compel the obedience of the different nations - composing the Anglo-Saxon empire._ Hence, it became more necessary for - him to _conciliate their opinions_, if he solicited any service from a - vassal prince or a vassal state beyond the ordinary terms of the - compact; still more so, when he needed the support of a free burgh or - city. And we may view the assembly (the Witenagemot) as partaking of the - character of a political congress, in which the liegemen of the crown, - or the communities protected by the ‘Basileus,’ (sovereign,) were asked - or persuaded to relieve the exigences of the state, or to consider those - measures which might be required for the common weal. The sovereign was - compelled to parley with his dependents. - - It may be doubted whether any one member of the empire had power to - legislate for any other member. The Regulus of Cumbria was unaffected by - the vote of the Earl of East Angliæ, if he chose to stand out against - it. These dignitaries constituted a congress, in which the sovereign - could treat more conveniently and effectually with his vassals than by - separate negotiations. * * But the determinations of the Witan bound - those only who were present, or who concurred in the proposition; and a - vassal denying his assent to the grant, might assert that the engagement - which he had contracted with his superior did not involve any pecuniary - subsidy, but only rendered him liable to perform service in the - field.”—_1 Palgrave’s Rise and Progress of the English Commonwealth_, - 637 to 642. - -[^65]: “It was the freemen in Germany, and the possessors of land - in England, who were _suitors_ (jurors) in the hundred court. These - ranks of men were the same. The alteration which had happened in - relation to property had invested the German freemen with land or - territory.” - -[^66]: It would be wholly erroneous, I think, to infer from this - statement of Stuart, that either the “priests, princes, earls, or - _eorldormen_” exercised any authority over the jury in the trial of - causes, in the way of dictating the law to them. Henry’s account of this - matter doubtless gives a much more accurate representation of the truth. - He says that _anciently_ - - > “The meeting (the county court) was opened with a discourse by the - > bishop, explaining, out of the Scriptures and ecclesiastical canons, - > their several duties as good Christians and members of the church. - > After this, the alderman, or one of his assessors, made a discourse - > on the laws of the land, and the duties of good subjects and good - > citizens. _When these preliminaries were over, they proceeded to try - > and determine, first the causes of the church, next the pleas of the - > crown, and last of all the controversies of private parties._”—3 - > _Henry’s History of Great Britain_, 348. - - This view is corroborated by Tyrrell’s _Introduction to the History of - England_, p. 83-84, and by Spence’s _Origin of the Laws and Political - Institutions of Modern Europe_, p. 447, and the note on the same page. - Also by a law of Canute to this effect, _In every county let there be - twice a year an assembly, whereat the bishop and the earl shall be - present, the one to instruct the people in divine, the other in human, - laws_.—_Wilkins_, p. 136. - -[^67]: There was no distinction between the civil and criminal - counts, as to the rights or powers of juries. diff --git a/edited/04.markdown b/edited/04.markdown deleted file mode 100644 index 3f6d3ec..0000000 --- a/edited/04.markdown +++ /dev/null @@ -1,557 +0,0 @@ -# THE RIGHTS AND DUTIES OF JURIES IN CIVIL SUITS - - -The evidence already given in the preceding chapters proves that the -rights and duties of jurors, in civil suits, were anciently the same as -in criminal ones; that the laws of the king were of no obligation upon -the consciences of the jurors, any further than the laws were seen by -them to be just; that very few laws were enacted applicable to civil -suits; that when a new law was enacted, the nature of it could have been -known to the jurors only by report, and was very likely not to be known -to them at all; that nearly all the law involved in civil suits was -_unwritten_; that there was _usually_ no one in attendance upon juries -who could possibly enlighten them, unless it were sheriffs, stewards, -and bailiffs, who were unquestionably too ignorant and untrustworthy to -instruct them authoritatively; that the jurors must therefore -necessarily have judged for themselves of the whole case; and that, _as -a general rule_, they could judge of it by no law but the law of nature, -or the principles of justice as they existed in their own minds. - -The ancient oath of jurors in civil suits, viz., that “_they would make -known the truth according to their consciences_,” implies that the -jurors were above the authority of all legislation. The modern oath, in -England, viz., that they “_will well and truly try the issue between the -parties, and a true verdict give, according to the evidence_,” implies -the same thing. If the laws of the king had been binding upon a jury, -they would have been sworn to try the cases _according to law_, or -according to the laws. - -The ancient writs, in civil suits, as given in Glanville, (within the -half century before Magna Carta,) to wit, “Summon twelve free and legal -men, (or sometimes twelve knights,) to be in court, _prepared upon their -oaths to declare whether A or B have the greater right to the land in -question_,” indicate that the jurors judged of the whole matter on their -consciences only. - -The language of Magna Carta, already discussed, establishes the same -point; for, although some of the words, such as “outlawed,” and -“exiled,” would apply only to criminal cases, nearly the whole chapter -applies as well to civil as to criminal suits. For example, how could -the payment of a debt ever be enforced against an unwilling debtor, if -he could neither be “arrested, imprisoned, nor deprived of his -freehold,” and if the king could neither “proceed against him, nor send -any one against him, by force or arms”? Yet Magna Carta as much forbids -that any of these things shall be done against a debtor, as against a -criminal, _except according to, or in execution of_, “_a judgment of his -peers, or the law of the land_,”—a provision which, it has been shown, -gave the jury the free and absolute right to give or withhold “judgment” -according to their consciences, irrespective of all legislation. - -The following provisions, in the Magna Carta of John, illustrate the -custom of referring the most important matters of a civil nature, even -where the king was a party, to the determination of the peers, or of -twelve men, acting by no rules but their own consciences. These examples -at least show that there is nothing improbable or unnatural in the idea -that juries should try all civil suits according to their own judgments, -independently of all laws of the king. - -> _Chap. 65._ “If we have disseized or dispossessed the Welsh of any -> lands, liberties, or other things, without the legal judgment of -> their peers, they shall be immediately restored to them. And if any -> dispute arises upon this head, the matter shall be determined in the -> Marches,[^68] _by the judgment of their peers_,” &c. - -> _Chap. 68._ “We shall treat with Alexander, king of Scots, concerning -> the restoring of his sisters, and hostages, and rights and liberties, -> in the same form and manner as we shall do to the rest of our barons -> of England; unless by the engagements, which his father William, late -> king of Scots, hath entered into with us, it ought to be otherwise; -> _and this shall be left to the determination of his peers in our -> court_.” - -> _Chap. 56._ “All evil customs concerning forests, warrens, and -> foresters, warreners, sheriffs, and their officers, rivers and their -> keepers, shall forthwith be inquired into in each county, _by twelve -> knights of the same shire_, chosen by the most creditable persons in -> the same county, _and upon oath_; and within forty days after the -> said inquest, be utterly abolished, so as never to be restored.” - -There is substantially the same reason why a jury _ought_ to judge of -the justice of laws, and hold all unjust laws invalid, in civil suits, -as in criminal ones. That reason is the necessity of guarding against -the tyranny of the government. Nearly the same oppressions can be -practised in civil suits as in criminal ones. For example, individuals -may be deprived of their liberty, and robbed of their property, by -judgments rendered in civil suits, as well as in criminal ones. If the -laws of the king were imperative upon a jury in civil suits, the king -might enact laws giving one man’s property to another, or confiscating -it to the king himself, and authorizing civil suits to obtain possession -of it. Thus a man might be robbed of his property at the arbitrary -pleasure of the king. In fact, all the property of the kingdom would be -placed at the arbitrary disposal of the king, through the judgments of -juries in civil suits, if the laws of the king were imperative upon a -jury in such suits.[^69] - -Furthermore, it would be absurd and inconsistent to make a jury -paramount to legislation in _criminal_ suits, and subordinate to it in -_civil_ suits; because an individual, by resisting the execution of a -_civil_ judgment, founded upon an unjust law, could give rise to a -_criminal_ suit, in which the jury would be bound to hold the same law -invalid. So that, if an unjust law were binding upon a jury in _civil_ -suits, a defendant, by resisting the execution of the judgment, could, -_in effect_, convert the civil action into a criminal one, in which the -jury would be paramount to the same legislation, to which, in the -_civil_ suit, they were subordinate. In other words, in the _criminal_ -suit, the jury would be obliged to justify the defendant in resisting a -law, which, in the _civil_ suit, they had said he was bound to submit -to. - -To make this point plain to the most common mind—suppose a law be -enacted that the property of A shall be given to B. B brings a civil -action to obtain possession of it. If the jury, in this _civil_ suit, -are bound to hold the law obligatory, they render a judgment in favor of -B, that he be put in possession of the property; _thereby declaring that -A is bound to submit to a law depriving him of his property_. But when -the execution of that judgment comes to be attempted—that is, when the -sheriff comes to take the property for the purpose of delivering it to -B—A acting, as he has a _natural_ right to do, in defence of his -property, resists and kills the sheriff. He is thereupon indicted for -murder. On this trial his plea is, that in killing the sheriff, he was -simply exercising his _natural_ right of defending his property against -an unjust law. The jury, not being bound, in a _criminal_ case, by the -authority of an unjust law, judge the act on its merits, and acquit the -defendant—thus declaring that he was _not_ bound to submit to the same -law which the jury, in the _civil_ suit, had, by their judgment, -declared that he _was_ bound to submit to. Here is a contradiction -between the two judgments. In the _civil_ suit, the law is declared to -be obligatory upon A; in the _criminal_ suit, the same law is declared -to be of no obligation. - -It would be a solecism and absurdity in government to allow such -consequences as these. Besides, it would be practically impossible to -maintain government on such principles; for no government could enforce -its _civil_ judgments, unless it could support them by _criminal_ ones, -in case of resistance. A jury must therefore be paramount to legislation -in both civil and criminal cases, or in neither. If they are paramount -in neither, they are no protection to liberty. If they are paramount in -both, then all legislation goes only for what it may chance to be worth -in the estimation of a jury. - -Another reason why Magna Carta makes the discretion and consciences of -juries paramount to all legislation in _civil_ suits, is, that if -legislation were binding upon a jury, the jurors—(by reason of their -being unable to read, as jurors in those days were, and also by reason -of many of the statutes being unwritten, or at least not so many copies -written as that juries could be supplied with them)—would have been -necessitated—at least in those courts in which the king’s justices -sat—to take the word of those justices as to what the laws of the king -really were. In other words, they would have been necessitated _to take -the law from the court_, as jurors do now. - -Now there were two reasons why, as we may rationally suppose, the people -did not wish juries to take their law from the king’s judges. One was, -that, at that day, the people probably had sense enough to see, (what -we, at this day, have not sense enough to see, although we have the -evidence of it every day before our eyes,) that those judges, being -dependent upon the legislative power, (the king,) being appointed by it, -paid by it, and removable by it at pleasure, would be mere tools of that -power, and would hold all its legislation obligatory, whether it were -just or unjust. This was one reason, doubtless, why Magna Carta made -juries, in civil suits, paramount to all instructions of the king’s -judges. The reason was precisely the same as that for making them -paramount to all instructions of judges in criminal suits, viz., that -the people did not choose to subject their rights of property, and all -other rights involved in civil suits, to the operation of such laws as -the king might please to enact. It was seen that to allow the king’s -judges to dictate the law to the jury would be equivalent to making the -legislation of the king imperative upon the jury. - -Another reason why the people did not wish juries, in civil suits, to -take their law from the king’s judges, doubtless was, that, knowing the -dependence of the judges upon the king, and knowing that the king would, -of course, tolerate no judges who were not subservient to his will, they -necessarily inferred that the king’s judges would be as corrupt, in the -administration of justice, as was the king himself, or as he wished them -to be. And how corrupt that was, may be inferred from the following -historical facts. - -Hume says: - -> “It appears that the ancient kings of England put themselves entirely -> upon the footing of the barbarous Eastern princes, whom no man must -> approach without a present, who sell all their good offices, and who -> intrude themselves into every business that they may have a pretence -> for extorting money. Even justice was avowedly bought and sold; the -> king’s court itself, though the supreme judicature of the kingdom, -> was open to none that brought not presents to the king; the bribes -> given for expedition, delay, suspension, and doubtless for the -> perversion of justice, were entered in the public registers of the -> royal revenue, and remain as monuments of the perpetual iniquity and -> tyranny of the times. The barons of the exchequer, for instance, the -> first nobility of the kingdom, were not ashamed to insert, as an -> article in their records, that the county of Norfolk paid a sum that -> they might be fairly dealt with; the borough of Yarmouth, that the -> king’s charters, which they have for their liberties, might not be -> violated; Richard, son of Gilbert, for the king’s helping him to -> recover his debt from the Jews; * * Serlo, son of Terlavaston, that -> he might be permitted to make his defence, in case he were accused of -> a certain homicide; Walter de Burton, for free law, if accused of -> wounding another; Robert de Essart, for having an inquest to find -> whether Roger, the butcher, and Wace and Humphrey, accused him of -> robbery and theft out of envy and ill-will, or not; William Buhurst, -> for having an inquest to find whether he were accused of the death of -> one Godwin, out of ill-will, or for just cause. I have selected these -> few instances from a great number of the like kind, which Madox had -> selected from a still greater number, preserved in the ancient rolls -> of the exchequer. - -> Sometimes a party litigant offered the king a certain portion, a -> half, a third, a fourth, payable out of the debts which he, as the -> executor of justice, should assist in recovering. Theophania de -> Westland agreed to pay the half of two hundred and twelve marks, that -> she might recover that sum against James de Fughleston; Solomon, the -> Jew, engaged to pay one mark out of every seven that he should -> recover against Hugh de la Hose; Nicholas Morrel promised to pay -> sixty pounds, that the Earl of Flanders might be distrained to pay -> him three hundred and forty-three pounds, which the earl had taken -> from him; and these sixty pounds were to be paid out of the first -> money that Nicholas should recover from the earl.”—_Hume, Appendix -> 2._ - -> “In the reign of Henry II., the best and most just of these (the -> Norman) princes, * * Peter, of Blois, a judicious and even elegant -> writer, of that age, gives a pathetic description of the _venality of -> justice_, and the oppressions of the poor, * * and he scruples not to -> complain to the king himself of these abuses. We may judge what the -> case would be under the government of worse princes.”—_Hume, -> Appendix 2._ - -Carte says: - -> “The crown exercised in those days an exorbitant and inconvenient -> power, ordering the justices of the king’s court, in suits about -> lands, to turn out, put, and keep in possession, which of the -> litigants they pleased; to send contradictory orders; and take large -> sums of money from each; to respite proceedings; to direct sentences; -> and the judges, acting by their commission, conceived themselves -> bound to observe such orders, to the great delay, interruption, and -> preventing of justice; at least, this was John’s practice.”—_Carte’s -> History of England_, vol. 1, p. 832. - -Hallam says: - -> “But of all the abuses that deformed the Anglo-Saxon government, none -> was so flagitious as the sale of judicial redress. The king, we are -> often told, is the fountain of justice; but in those ages it was one -> which gold alone could unseal. Men fined (paid fines) to have right -> done them; to sue in a certain court; to implead a certain person; to -> have restitution of land which they had recovered at law. From the -> sale of that justice which every citizen has a right to demand, it -> was an easy transition to withhold or deny it. Fines were received -> for the king’s help against the adverse suitor; that is, for -> perversion of justice, or for delay. Sometimes they were paid by -> opposite parties, and, of course, for opposite ends.”—_2 Middle -> Ages_, 438. - -In allusion to the provision of Magna Carta on this subject, Hallam -says: - -> “A law which enacts that justice shall neither be sold, denied, nor -> delayed, stamps with infamy that government under which it had become -> necessary.”—_2 Middle Ages_, 451. - -Lingard, speaking of the times of Henry II., (say 1184,) says: - -> “It was universally understood that money possessed greater influence -> than justice in the royal courts, and instances are on record, in -> which one party has made the king a present to accelerate, and the -> other by a more valuable offer has succeeded in retarding a decision. -> * * But besides the fines paid to the sovereigns, _the judges often -> exacted presents for themselves_, and loud complaints existed against -> their venality and injustice.”—_2 Lingard_, 231. - -In the narrative of “The costs and charges which I, Richard de Anesty, -bestowed in recovering the land of William, my uncle,” (some fifty years -before Magna Carta,) are the following items: - -> “To Ralph, the king’s physician, I gave thirty-six marks and one -> half; to the king an hundred marks; and to the queen one mark of -> gold.” The result is thus stated. “At last, thanks to our lord the -> king, and by judgment of his court, my uncle’s land was adjudged to -> me.”—_2 Palgrave’s Rise and Progress of the English Commonwealth_, -> p. 9 and 24. - -Palgrave also says: - -> “The precious ore was cast into the scales of justice, even when held -> by the most conscientious of our Anglo-Saxon kings. A single case -> will exemplify the practices which prevailed. Alfric, the heir of -> ‘Aylwin, the black,’ seeks to set aside the death-bed bequest, by -> which his kinsman bestowed four rich and fertile manors upon St. -> Benedict. Alfric, the claimant, was supported by extensive and -> powerful connexions; and Abbot Alfwine, the defendant, was well aware -> that there would be _danger_ in the discussion of the dispute in -> public, or before the Folkmoot, (people’s meeting, or county court); -> or, in other words, that the Thanes of the shire would do their best -> to give a judgment in favor of their compeer. The plea being removed -> into the Royal Court, the abbot acted with that prudence which so -> often calls forth the praises of the monastic scribe. He gladly -> emptied twenty marks of gold into the sleeve of the Confessor, -> (Edward,) and five marks of gold presented to Edith, the Fair, -> encouraged her to aid the bishop, and to exercise her gentle -> influence in his favor. Alfric, with equal wisdom, withdrew from -> prosecuting the hopeless cause, in which his opponent might possess -> an advocate in the royal judge, and a friend in the king’s consort. -> Both parties, therefore, found it desirable to come to an -> agreement.”—_1 Palgrave’s Rise and Progress, &c._, p. 650. - -But Magna Carta has another provision for the trial of _civil_ suits, -that obviously had its origin in the corruption of the king’s judges. -The provision is, that four knights, to be chosen in every county, by -the people of the county, shall sit with the king’s judges, in the -Common Pleas, in jury trials, (assizes,) on the trial of three certain -kinds of suits, that were among the most important that were tried at -all. The reason for this provision undoubtedly was, that the corruption -and subserviency of the king’s judges were so well known, that the -people would not even trust them to sit alone in a jury trial of any -considerable importance. The provision is this: - -> _Chap. 22_, (of John’s Charter.) “Common Pleas shall not follow our -> court, but shall be holden in some certain place. Trials upon the -> writ of _novel disseisin_, and of _Mort d’Ancester_, and of _Darrein -> Presentment_, shall be taken but in their proper counties, and after -> this manner: We, or, if we should be out of our realm, our chief -> justiciary, shall send two justiciaries through every county four -> times a year;[^70] _who, with four knights chosen out of every shire, -> by the people, shall hold the assizes_ (juries) _in the county, on -> the day and at the place appointed_.” - -It would be very unreasonable to suppose that the king’s judges were -allowed to _dictate_ the law to the juries, when the people would not -even suffer them to sit alone in jury trials, but themselves chose four -men to sit with them, to keep them honest.[^71] - -This practice of sending the king’s judges into the counties to preside -at jury trials, was introduced by the Norman kings. Under the Saxons it -was not so. _No officer of the king was allowed to preside at a jury -trial; but only magistrates chosen by the people._[^72] - -But the following chapter of John’s charter, which immediately succeeds -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. - -[^68]: _Marches_, the limits, or boundaries, between England and - Wales. - -[^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. - -[^70]: By the Magna Carta of Henry III. this is changed to once a - year. - -[^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. - -[^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. diff --git a/edited/05.markdown b/edited/05.markdown deleted file mode 100644 index c976da7..0000000 --- a/edited/05.markdown +++ /dev/null @@ -1,754 +0,0 @@ -CHAPTER V. - -OBJECTIONS ANSWERED - - -The following objections will be made to the doctrines and the evidence -presented in the preceding chapters. - -1. That it is a _maxim_ of the law, that the judges respond to the -question of law, and juries only to the question of fact. - -The answer to this objection is, that, since Magna Carta, judges have -had more than six centuries in which to invent and promulgate pretended -maxims to suit themselves; and this is one of them. Instead of -expressing the law, it expresses nothing but the ambitious and lawless -will of the judges themselves, and of those whose instruments they -are.[^73] - -2. It will be asked, Of what use are the justices, if the jurors judge -both of law and fact? - -The answer is, that they are of use, 1. To assist and enlighten the -jurors, if they can, by their advice and information; such advice and -information to be received only for what they may chance to be worth in -the estimation of the jurors. 2. To do anything that may be necessary in -regard to granting appeals and new trials. - -3. It is said that it would be absurd that twelve ignorant men should -have power to judge of the law, while justices learned in the law should -be compelled to sit by and see the law decided erroneously. - -One answer to this objection is, that the powers of juries are not -granted to them on the supposition that they know the law better than -the justices; but on the ground that the justices are untrustworthy, -that they are exposed to bribes, are themselves fond of power and -authority, and are also the dependent and subservient creatures of the -legislature; and that to allow them to dictate the law, would not only -expose the rights of parties to be sold for money, but would be -equivalent to surrendering all the property, liberty, and rights of the -people, unreservedly into the hands of arbitrary power, (the -legislature,) to be disposed of at its pleasure. The powers of juries, -therefore, not only place a curb upon the powers of legislators and -judges, but imply also an imputation upon their integrity and -trustworthiness; and _these_ are the reasons why legislators and judges -have formerly entertained the intensest hatred of juries, and, so fast -as they could do it without alarming the people for their liberties, -have, by indirection, denied, undermined, and practically destroyed -their power. And it is only since all the real power of juries has been -destroyed, and they have become mere tools in the hands of legislators -and judges, that they have become favorites with them. - -Legislators and judges are necessarily exposed to all the temptations of -money, fame, and power, to induce them to disregard justice between -parties, and sell the rights, and violate the liberties of the people. -Jurors, on the other hand, are exposed to none of these temptations. -They are not liable to bribery, for they are unknown to the parties -until they come into the jury-box. They can rarely gain either fame, -power, or money, by giving erroneous decisions. Their offices are -temporary, and they know that when they shall have executed them, they -must return to the people, to hold all their own rights in life subject -to the liability of such judgments, by their successors, as they -themselves have given an example for. The laws of human nature do not -permit the supposition that twelve men, taken by lot from the mass of -the people, and acting under such circumstances, will _all_ prove -dishonest. It is a supposable case that they may not be sufficiently -enlightened to know and do their whole duty, in all cases whatsoever; -but that they should _all_ prove _dishonest_, is not within the range -of probability. A jury, therefore, insures to us—what no other court -does—that first and indispensable requisite in a judicial tribunal, -integrity. - -4. It is alleged that if juries are allowed to judge of the law, _they -decide the law absolutely; that their decision must necessarily stand, -be it right or wrong_; and that this power of absolute decision would be -dangerous in their hands, by reason of their ignorance of the law. - -One answer is, that this power, which juries have of _judging_ of the -law, is not a power of _absolute decision in all cases_. For example, it -is a power to declare imperatively that a man’s property, liberty, or -life, shall _not_ be taken from him; but it is not a power to declare -imperatively that they _shall_ be taken from him. - -Magna Carta does not provide that the judgments of the peers _shall be -executed_; but only that _no other than their judgments_ shall ever be -executed, _so far as to take a party’s goods, rights, or person, -thereon_. - -A judgment of the peers may be reviewed, and invalidated, and a new -trial granted. So that practically a jury has no absolute power to take -a party’s goods, rights, or person. They have only an absolute veto upon -their being taken by the government. The government is not bound to do -everything that a jury may adjudge. It is only prohibited from doing -anything—(that is, from taking a party’s goods, rights, or -person)—unless a jury have first adjudged it to be done. - -But it will, perhaps, be said, that if an erroneous judgment of one jury -should be reaffirmed by another, on a new trial, it must _then_ be -executed. But Magna Carta does not command even this—although it might, -perhaps, have been reasonably safe for it to have done so—for if two -juries unanimously affirm the same thing, after all the light and aid -that judges and lawyers can afford them, that fact probably furnishes as -strong a presumption in favor of the correctness of their opinion, as -can ordinarily be obtained in favor of a judgment, by any measures of a -practical character for the administration of justice. Still, there is -nothing in Magna Carta that _compels_ the execution of even a second -judgment of a jury. The only injunction of Magna Carta upon the -government, as to what it _shall do_, on this point, is that it shall -“do justice and right,” without sale, denial, or delay. But this leaves -the government all power of determining what is justice and right, -except that it shall not consider anything as justice and right—so far -as to carry it into execution against the goods, rights, or person of a -party—unless it be something which a jury have sanctioned. - -If the government had no alternative but to execute all judgments of a -jury indiscriminately, the power of juries would unquestionably be -dangerous; for there is no doubt that they may sometimes give hasty and -erroneous judgments. But when it is considered that their judgments can -be reviewed, and new trials granted, this danger is, for all practical -purposes, obviated. - -If it be said that juries may _successively_ give erroneous judgments, -and that new trials cannot be granted indefinitely, the answer is, that -so far as Magna Carta is concerned, there is nothing to prevent the -granting of new trials indefinitely, if the judgments of juries are -contrary to “justice and right.” So that Magna Carta does not _require_ -any judgment whatever to be executed—so far as to take a party’s goods, -rights, or person, thereon—unless it be concurred in by both court and -jury. - -Nevertheless, we may, for the sake of the argument, suppose the -existence of a _practical_, if not _legal_, necessity, for executing -_some_ judgment or other, in cases where juries persist in disagreeing -with the courts. In such cases, the principle of Magna Carta -unquestionably is, that the uniform judgments of _successive_ juries -shall prevail over the opinion of the court. And the reason of this -principle is obvious, viz., that it is the will of the country, and not -the will of the court, or the government, that must determine what laws -shall be established and enforced; that the concurrent judgments of -successive juries, given in opposition to all the reasoning which judges -and lawyers can offer to the contrary, must necessarily be presumed to -be a truer exposition of the will of the country, than are the opinions -of the judges. - -But it may be said that, unless jurors submit to the control of the -court, in matters of law, they may disagree among themselves, and -_never_ come to any judgment; and thus justice fail to be done. - -Such a case is perhaps possible; but, if possible, it can occur but -rarely; because, although one jury may disagree, a succession of juries -are not likely to disagree—that is, _on matters of natural law, or -abstract justice_.[^74] If such a thing should occur, it would almost -certainly be owing to the attempt of the court to mislead them. It is -hardly possible that any other cause should be adequate to produce such -an effect; because justice comes very near to being a self-evident -principle. The mind perceives it almost intuitively. If, in addition to -this, the court be uniformly on the side of justice, it is not a -reasonable supposition that a succession of juries should disagree about -it. If, therefore, a succession of juries do disagree on the law of any -case, the presumption is, not that justice fails of being done, but that -injustice is prevented—_that_ injustice, which would be done, if the -opinion of the court were suffered to control the jury. - -For the sake of the argument, however, it may be admitted to be possible -that justice should sometimes fail of being done through the -disagreements of jurors, notwithstanding all the light which judges and -lawyers can throw upon the question in issue. If it be asked what -provision the trial by jury makes for such cases, the answer is, _it -makes none; and justice must fail of being done, from the want of its -being made sufficiently intelligible_. - -Under the trial by jury, justice can never be done—that is, by a -judgment that shall take a party’s goods, rights, or person—until that -justice can be made intelligible or perceptible to the minds of _all_ -the jurors; or, at least, until it obtain the voluntary assent of -all—an assent, which ought not to be given until the justice itself -shall have become perceptible to all. - -The principles of the trial by jury, then, are these: - -1. That, in criminal cases, the accused is presumed innocent. - -2. That, in civil cases, possession is presumptive proof of property; -or, in other words, every man is presumed to be the rightful proprietor -of whatever he has in his possession. - -3. That these presumptions shall be overcome, in a court of justice, -only by evidence, the sufficiency of which, and by law, the justice of -which, are satisfactory to the understanding and consciences of _all_ -the jurors. - -These are the bases on which the trial by jury places the property, -liberty, and rights of every individual. - -But some one will say, if these are the principles of the trial by jury, -then it is plain that justice must often fail to be done. Admitting, for -the sake of the argument, that this may be true, the compensation for it -is, that positive _injustice_ will also often fail to be done; whereas -otherwise it would be done frequently. The very precautions used to -prevent _injustice_ being done, may often have the effect to prevent -_justice_ being done. But are we, therefore, to take no precautions -against injustice? By no means, all will agree. The question then -arises—Does the trial by jury, _as here explained_, involve such -extreme and unnecessary precautions against injustice, as to interpose -unnecessary obstacles to the doing of justice? Men of different minds -may very likely answer this question differently, according as they have -more or less confidence in the wisdom and justice of legislators, the -integrity and independence of judges, and the intelligence of jurors. -This much, however, may be said in favor of these precautions, viz., -that the history of the past, as well as our constant present -experience, prove how much injustice may, and certainly will, be done, -systematically and continually, _for the want of these precautions_—that -is, while the law is authoritatively made and expounded by legislators and -judges. On the other hand, we have no such evidence of how much justice -may fail to be done, _by reason of these precautions_—that is, by reason -of the law being left to the judgments and consciences of jurors. We can -determine the former point—that is, how much positive injustice is done -under the first of these two systems—because the system is in full -operation; but we cannot determine how much justice would fail to be -done under the latter system, because we have, in modern times, had no -experience of the use of the precautions themselves. In ancient times, -when these precautions were _nominally_ in force, such was the tyranny of -kings, and such the poverty, ignorance, and the inability of concert and -resistance, on the part of the people, that the system had no full or fair -operation. It, nevertheless, under all these disadvantages, impressed -itself upon the understandings, and imbedded itself in the hearts, of the -people, so as no other system of civil liberty has ever done. - -But this view of the two systems compares only the injustice done, and -the justice omitted to be done, in the individual cases adjudged, -without looking beyond them. And some persons might, on first thought, -argue that, if justice failed of being done under the one system, -oftener than positive injustice were done under the other, the balance -was in favor of the latter system. But such a weighing of the two -systems against each other gives no true idea of their comparative -merits or demerits; for, possibly, in this view alone, the balance would -not be very great in favor of either. To compare, or rather to contrast, -the two, we must consider that, under the jury system, the failures to -do justice would be only rare and exceptional cases; and would be owing -either to the intrinsic difficulty of the questions, or to the fact that -the parties had transacted their business in a manner unintelligible to -the jury, and the effects would be confined to the individual or -individuals interested in the particular suits. No permanent law would -be established thereby destructive of the rights of the people in other -like cases. And the people at large would continue to enjoy all their -natural rights as before. But under the other system, whenever an unjust -law is enacted by the legislature, and the judge imposes it upon the -jury as authoritative, and they give a judgment in accordance therewith, -the authority of the law is thereby established, and the whole people -are thus brought under the yoke of that law; because they then -understand that the law will be enforced against them in future, if they -presume to exercise their rights, or refuse to comply with the -exactions of the law. In this manner all unjust laws are established, -and made operative against the rights of the people. - -The difference, then, between the two systems is this: Under the one -system, a jury, at distant intervals, would (not enforce any positive -injustice, but only) fail of enforcing justice, in a dark and difficult -case, or in consequence of the parties not having transacted their -business in a manner intelligible to a jury; and the plaintiff would -thus fail of obtaining what was rightfully due him. And there the matter -would end, _for evil_, though not for good; for thenceforth parties, -warned of the danger of losing their rights, would be careful to -transact their business in a more clear and intelligible manner. Under -the other system—the system of legislative and judicial -authority—positive injustice is not only done in every suit arising -under unjust laws,—that is, men’s property, liberty, or lives are not -only unjustly taken on those particular judgments,—but the rights of -the whole people are struck down by the authority of the laws thus -enforced, and a wide-sweeping tyranny at once put in operation. - -But there is another ample and conclusive answer to the argument that -justice would often fail to be done, if jurors were allowed to be -governed by their own consciences, instead of the direction of the -justices, in matters of law. That answer is this: - -Legitimate government can be formed only by the voluntary association of -all who contribute to its support. As a voluntary association, it can -have for its objects only those things in which the members of the -association are _all agreed_. If, therefore, there be any _justice_, in -regard to which all the parties to the government _are not agreed_, the -objects of the association do not extend to it.[^75] - -If any of the members wish more than this,—if they claim to have -acquired a more extended knowledge of justice than is common to all, and -wish to have their pretended discoveries carried into effect, in -reference to themselves,—they must either form a separate association -for that purpose, or be content to wait until they can make their views -intelligible to the people at large. They cannot claim or expect that -the whole people shall practise the folly of taking on trust their -pretended superior knowledge, and of committing blindly into their hands -all their own interests, liberties, and rights, to be disposed of on -principles, the justness of which the people themselves cannot -comprehend. - -A government of the whole, therefore, must necessarily confine itself to -the administration of such principles of law as _all_ the people, who -contribute to the support of the government, can comprehend and see the -justice of. And it can be confined within those limits only by allowing -the jurors, who represent all the parties to the compact, to judge of -the law, and the justice of the law, in all cases whatsoever. And if any -justice be left undone, under these circumstances, it is a justice for -which the nature of the association does not provide, which the -association does not undertake to do, and which, as an association, it -is under no obligation to do. - -The people at large, the unlearned and common people, have certainly an -indisputable right to associate for the establishment and maintenance of -such a government as _they themselves_ see the justice of, and feel the -need of, for the promotion of their own interests, and the safety of -their own rights, without at the same time surrendering all their -property, liberty, and rights into the hands of men, who, under the -pretence of a superior and incomprehensible knowledge of justice, may -dispose of such property, liberties, and rights, in a manner to suit -their own selfish and dishonest purposes. - -If a government were to be established and supported _solely_ by that -portion of the people who lay claim to superior knowledge, there would -be some consistency in their saying that the common people should not be -received as jurors, with power to judge of the justice of the laws. But -so long as the whole people (or all the male adults) are presumed to be -voluntary parties to the government, and voluntary contributors to its -support, there is no consistency in refusing to any one of them more -than to another the right to sit as juror, with full power to decide for -himself whether any law that is proposed to be enforced in any -particular case, be within the objects of the association. - -The conclusion, therefore, is, that, in a government formed by voluntary -association, or on the _theory_ of voluntary association, and voluntary -support, (as all the North American governments are,) no law can -rightfully be enforced by the association in its corporate capacity, -against the goods, rights, or person of any individual, except it be -such as _all_ the members of the association agree that it may enforce. -To enforce any other law, to the extent of taking a man’s goods, rights, -or person, would be making _some_ of the parties to the association -accomplices in what they regard as acts of injustice. It would also be -making them consent to what they regard as the destruction of their own -rights. These are things which no legitimate system or theory of -government can require of any of the parties to it. - -The mode adopted, by the trial by jury, for ascertaining whether all the -parties to the government do approve of a particular law, is to take -twelve men at random from the whole people, and accept their unanimous -decision as representing the opinions of the whole. Even this mode is -not theoretically accurate; for theoretical accuracy would require that -every man, who was a party to the government, should individually give -his consent to the enforcement of every law in every separate case. But -such a thing would be impossible in practice. The consent of twelve men -is therefore taken instead; with the privilege of appeal, and (in case -of error found by the appeal court) a new trial, to guard against -possible mistakes. This system, it is assumed, will ascertain the sense -of the whole people—“the country”—with sufficient accuracy for all -practical purposes, and with as much accuracy as is practicable without -too great inconvenience and expense. - -5. Another objection that will perhaps be made to allowing jurors to -judge of the law, and the justice of the law, is, that the law would be -uncertain. - -If, by this objection, it be meant that the law would be uncertain to -the minds of the people at large, so that they would not know what the -juries would sanction and what condemn, and would not therefore know -practically what their own rights and liberties were under the law, the -objection is thoroughly baseless and false. No system of law that was -ever devised could be so entirely intelligible and certain to the minds -of the people at large as this. Compared with it, the complicated -systems of law that are compounded of the law of nature, of -constitutional grants, of innumerable and incessantly changing -legislative enactments, and of countless and contradictory judicial -decisions, with no uniform principle of reason or justice running -through them, are among the blindest of all the mazes in which -unsophisticated minds were ever bewildered and lost. The uncertainty of -the law under these systems has become a proverb. So great is this -uncertainty, that nearly all men, learned as well as unlearned, shun the -law as their enemy, instead of resorting to it for protection. They -usually go into courts of justice, so called, only as men go into -battle—when there is no alternative left for them. And even then they -go into them as men go into dark labyrinths and caverns—with no -knowledge of their own, but trusting wholly to their guides. Yet, less -fortunate than other adventurers, they can have little confidence even -in their guides, for the reason that the guides themselves know little -of the mazes they are threading. They know the mode and place of -entrance; but what they will meet with on their way, and what will be -the time, mode, place, or condition of their exit; whether they will -emerge into a prison, or not; whether _wholly_ naked and destitute, or -not; whether with their reputations left to them, or not; and whether in -time or eternity; experienced and honest guides rarely venture to -predict. Was there ever such fatuity as that of a nation of men madly -bent on building up such labyrinths as these, for no other purpose than -that of exposing all their rights of reputation, property, liberty, and -life, to the hazards of being lost in them, instead of being content to -live in the light of the open day of their own understandings? - -What honest, unsophisticated man ever found himself involved in a -lawsuit, that he did not desire, of all things, that his cause might be -judged of on principles of natural justice, as those principles were -understood by plain men like himself? He would then feel that he could -foresee the result. These plain men are the men who pay the taxes, and -support the government. Why should they not have such an administration -of justice as they desire, and can understand? - -If the jurors were to judge of the law, and the justice of the law, -there would be something like certainty in the administration of -justice, and in the popular knowledge of the law, and men would govern -themselves accordingly. There would be something like certainty, because -every man has himself something like definite and clear opinions, and -also knows something of the opinions of his neighbors, on matters of -justice. And he would know that no statute, unless it were so clearly -just as to command the unanimous assent of twelve men, who should be -taken at random from the whole community, could be enforced so as to -take from him his reputation, property, liberty, or life. What greater -certainty can men require or need, as to the laws under which they are -to live? If a statute were enacted by a legislature, a man, in order to -know what was its true interpretation, whether it were constitutional, -and whether it would be enforced, would not be under the necessity of -waiting for years until some suit had arisen and been carried through -all the stages of judicial proceeding, to a final decision. He would -need only to use his own reason as to its meaning and its justice, and -then talk with his neighbors on the same points. Unless he found them -nearly unanimous in their interpretation and approbation of it, he would -conclude that juries would not unite in enforcing it, and that it would -consequently be a dead letter. And he would be safe in coming to this -conclusion. - -There would be something like certainty in the administration of -justice, and in the popular knowledge of the law, for the further reason -that there would be little legislation, and men’s rights would be left -to stand almost solely upon the law of nature, or what was once called -in England “the _common law_,” (before so much legislation and -usurpation had become incorporated into the common law,)—in other -words, upon the principles of natural justice. - -Of the certainty of this law of nature, or the ancient English common -law, I may be excused for repeating here what I have said on another -occasion. - -> “Natural law, so far from being uncertain, when compared with -> statutory and constitutional law, is the only thing that gives any -> certainty at all to a very large portion of our statutory and -> constitutional law. The reason is this. The words in which statutes -> and constitutions are written are susceptible of so many different -> meanings,—meanings widely different from, often directly opposite -> to, each other, in their bearing upon men’s rights,—that, unless -> there were some rule of interpretation for determining which of these -> various and opposite meanings are the true ones, there could be no -> certainty at all as to the meaning of the statutes and constitutions -> themselves. Judges could make almost anything they should please out -> of them. Hence the necessity of a rule of interpretation. _And this -> rule is, that the language of statutes and constitutions shall be -> construed, as nearly as possible, consistently with natural law._ - -> The rule assumes, what is true, that natural law is a thing certain -> in itself; also that it is capable of being learned. It assumes, -> furthermore, that it actually is understood by the legislators and -> judges who make and interpret the written law. Of necessity, -> therefore, it assumes further, that they (the legislators and judges) -> are _incompetent_ to make and interpret the _written_ law, unless -> they previously understand the natural law applicable to the same -> subject. It also assumes that the _people_ must understand the -> natural law, before they can understand the written law. - -> It is a principle perfectly familiar to lawyers, and one that must be -> perfectly obvious to every other man that will reflect a moment, -> that, as a general rule, _no one can know what the written law is, -> until he knows what it ought to be_; that men are liable to be -> constantly misled by the various and conflicting senses of the same -> words, unless they perceive the true legal sense in which the words -> _ought to be taken_. And this true legal sense is the sense that is -> most nearly consistent with natural law of any that the words can be -> made to bear, consistently with the laws of language, and -> appropriately to the subjects to which they are applied. - -> Though the words _contain_ the law, the _words_ themselves are not -> the law. Were the words themselves the law, each single written law -> would be liable to embrace many different laws, to wit, as many -> different laws as there were different senses, and different -> combinations of senses, in which each and all the words were capable -> of being taken. - -> Take, for example, the Constitution of the United States. By adopting -> one or another sense of the single word “_free_,” the whole -> instrument is changed. Yet the word _free_ is capable of some ten or -> twenty different senses. So that, by changing the sense of that -> single word, some ten or twenty different constitutions could be made -> out of the same written instrument. But there are, we will suppose, a -> thousand other words in the constitution, each of which is capable of -> from two to ten different senses. So that, by changing the sense of -> only a single word at a time, several thousands of different -> constitutions would be made. But this is not all. Variations could -> also be made by changing the senses of two or more words at a time, -> and these variations could be run through all the changes and -> combinations of senses that these thousand words are capable of. We -> see, then, that it is no more than a literal truth, that out of that -> single instrument, as it now stands, without altering the location of -> a single word, might be formed, by construction and interpretation, -> more different constitutions than figures can well estimate. - -> But each written law, in order to be a law, must be taken only in -> some _one_ definite and distinct sense; and that definite and -> distinct sense must be selected from the almost infinite variety of -> senses which its words are capable of. How is this selection to be -> made? It can be only by the aid of that perception of natural law, or -> natural justice, which men naturally possess. - -> Such, then, is the comparative certainty of the natural and the -> written law. Nearly all the certainty there is in the latter, so far -> as it relates to principles, is based upon, and derived from, the -> still greater certainty of the former. In fact, nearly all the -> uncertainty of the laws under which we live,—which are a mixture of -> natural and written laws,—arises from the difficulty of construing, -> or, rather, from the facility of misconstruing, the _written_ law; -> while natural law has nearly or quite the same certainty as -> mathematics. On this point, Sir William Jones, one of the most -> learned judges that have ever lived, learned in Asiatic as well as -> European law, says,—and the fact should be kept forever in mind, as -> one of the most important of all truths:—“_It is pleasing to remark -> the similarity, or, rather, the identity of those conclusions which -> pure, unbiassed reason, in all ages and nations, seldom fails to -> draw, in such juridical inquiries as are not fettered and manacled by -> positive institutions._”[^76] In short, the simple fact that the -> written law must be interpreted by the natural, is, of itself, a -> sufficient confession of the superior certainty of the latter. - -> The written law, then, even where it can be construed consistently -> with the natural, introduces labor and obscurity, instead of shutting -> them out. And this must always be the case, because words do not -> create ideas, but only recall them; and the same word may recall many -> different ideas. For this reason, nearly all abstract principles can -> be seen by the single mind more clearly than they can be expressed by -> words to another. This is owing to the imperfection of language, and -> the different senses, meanings, and shades of meaning, which -> different individuals attach to the same words, in the same -> circumstances.[^77] - -> Where the written law cannot be construed consistently with the -> natural, there is no reason why it should ever be enacted at all. It -> may, indeed, be sufficiently plain and certain to be easily -> understood; but its certainty and plainness are but a poor -> compensation for its injustice. Doubtless a law forbidding men to -> drink water, on pain of death, might be made so intelligible as to -> cut off all discussion as to its meaning; but would the -> intelligibleness of such a law be any equivalent for the right to -> drink water? The principle is the same in regard to all unjust laws. -> Few persons could reasonably feel compensated for the arbitrary -> destruction of their rights, by having the order for their -> destruction made known beforehand, in terms so distinct and -> unequivocal as to admit of neither mistake nor evasion. Yet this is -> all the compensation that such laws offer. - -> Whether, therefore, written laws correspond with, or differ from, the -> natural, they are to be condemned. In the first case, they are -> useless repetitions, introducing labor and obscurity. In the latter -> case, they are positive violations of men’s rights. - -> There would be substantially the same reason in enacting mathematics -> by statute, that there is in enacting natural law. Whenever the -> natural law is sufficiently certain to all men’s minds to justify its -> being enacted, it is sufficiently certain to need no enactment. On -> the other hand, until it be thus certain, there is danger of doing -> injustice by enacting it; it should, therefore, be left open to be -> discussed by anybody who may be disposed to question it, and to be -> judged of by the proper tribunal, the judiciary.[^78] - -> It is not necessary that legislators should enact natural law in -> order that it may be known to the _people_, because that would be -> presuming that the legislators already understand it better than the -> people,—a fact of which I am not aware that they have ever -> heretofore given any very satisfactory evidence. The same sources of -> knowledge on the subject are open to the people that are open to the -> legislators, and the people must be presumed to know it as well as -> they. - -> The objections made to natural law, on the ground of obscurity, are -> wholly unfounded. It is true, it must be learned, like any other -> science; but it is equally true that it is very easily learned. -> Although as illimitable in its applications as the infinite relations -> of men to each other, it is, nevertheless, made up of simple -> elementary principles, of the truth and justice of which every -> ordinary mind has an almost intuitive perception. _It is the science -> of justice_,—and almost all men have the same perceptions of what -> constitutes justice, or of what justice requires, when they -> understand alike the facts from which their inferences are to be -> drawn. Men living in contact with each other, and having intercourse -> together, _cannot avoid_ learning natural law, to a very great -> extent, even if they would. The dealings of men with men, their -> separate possessions, and their individual wants, are continually -> forcing upon their minds the questions,—Is this act just? or is it -> unjust? Is this thing mine? or is it his? And these are questions of -> natural law; questions, which, in regard to the great mass of cases, -> are answered alike by the human mind everywhere. - -> Children learn many principles of natural law at a very early age. -> For example: they learn that when one child has picked up an apple or -> a flower, it is his, and that his associates must not take it from -> him against his will. They also learn that if he voluntarily exchange -> his apple or flower with a playmate, for some other article of -> desire, he has thereby surrendered his right to it, and must not -> reclaim it. These are fundamental principles of natural law, which -> govern most of the greatest interests of individuals and society; yet -> children learn them earlier than they learn that three and three are -> six, or five and five, ten. Talk of enacting natural law by statute, -> that it may be known! It would hardly be extravagant to say, that, in -> nine cases in ten, men learn it before they have learned the language -> by which we describe it. Nevertheless, numerous treatises are written -> on it, as on other sciences. The decisions of courts, containing -> their opinions upon the almost endless variety of cases that have -> come before them, are reported; and these reports are condensed, -> codified, and digested, so as to give, in a small compass, the facts, -> and the opinions of the courts as to the law resulting from them. And -> these treatises, codes, and digests are open to be read of all men. -> And a man has the same excuse for being ignorant of arithmetic, or -> any other science, that he has for being ignorant of natural law. He -> can learn it as well, if he will, without its being enacted, as he -> could if it were. - -> If our governments would but themselves adhere to natural law, there -> would be little occasion to complain of the ignorance of the people -> in regard to it. The popular ignorance of law is attributable mainly -> to the innovations that have been made upon natural law by -> legislation; whereby our system has become an incongruous mixture of -> natural and statute law, with no uniform principle pervading it. To -> learn such a system,—if system it can be called, and if learned it -> can be,—is a matter of very similar difficulty to what it would be -> to learn a system of mathematics, which should consist of the -> mathematics of nature, interspersed with such other mathematics as -> might be created by legislation, in violation of all the natural -> principles of numbers and quantities. - -> But whether the difficulties of learning natural law be greater or -> less than here represented, they exist in the nature of things, and -> cannot be removed. Legislation, instead of removing, only increases -> them. This it does by innovating upon natural truths and principles, -> and introducing jargon and contradiction, in the place of order, -> analogy, consistency, and uniformity. - -> Further than this; legislation does not even profess to remove the -> obscurity of natural law. That is no part of its object. It only -> professes to substitute something arbitrary in the place of natural -> law. Legislators generally have the sense to see that legislation -> will not make natural law any clearer than it is. Neither is it the -> object of legislation to establish the authority of natural law. -> Legislators have the sense to see that they can add nothing to the -> authority of natural law, and that it will stand on its own -> authority, unless they overturn it. - -> The whole object of legislation, excepting that legislation which -> merely makes regulations, and provides instrumentalities for carrying -> other laws into effect, is to overturn natural law, and substitute -> for it the arbitrary will of power. In other words, the whole object -> of it is to destroy men’s rights. At least, such is its only effect; -> and its designs must be inferred from its effect. Taking all the -> statutes in the country, there probably is not one in a -> hundred,—except the auxiliary ones just mentioned,—that does not -> violate natural law; that does not invade some right or other. - -> Yet the advocates of arbitrary legislation are continually practising -> the fraud of pretending that unless the legislature _make_ the laws, -> the laws will not be known. The whole object of the fraud is to -> secure to the government the authority of making laws that never -> ought to be known.” - -In addition to the authority already cited, of Sir William Jones, as to -the certainty of natural law, and the uniformity of men’s opinions in -regard to it, I may add the following: - -> “There is that great simplicity and plainness in the Common Law, that -> Lord Coke has gone so far as to assert, (and Lord Bacon nearly -> seconds him in observing,) that ‘he never knew two questions arise -> merely upon common law; but that they were mostly owing to statutes -> ill-penned and overladen with provisos.’”—_3 Eunomus_, 157-8. - -If it still be said that juries would disagree, as to what was natural -justice, and that one jury would decide one way, and another jury -another; the answer is, that such a thing is hardly credible, as that -twelve men, taken at random from the people at large, should -_unanimously_ decide a question of natural justice one way, and that -twelve other men, selected in the same manner, should _unanimously_ -decide the same question the other way, _unless they were misled by the -justices_. If, however, such things should sometimes happen, from any -cause whatever, the remedy is by appeal, and new trial. - -[^73]: Judges do not even live up to that part of their own - maxim, which requires jurors to try the matter of fact. By dictating to - them the laws of evidence,—that is, by dictating what evidence they may - hear, and what they may not hear, and also by dictating to them rules - for weighing such evidence as they permit them to hear,—they of - necessity dictate the conclusion to which they shall arrive. And thus - the court really tries the question of fact, as well as the question of - law, in every cause. It is clearly impossible, in the nature of things, - for a jury to try a question of fact, without trying every question of - law on which the fact depends. - -[^74]: Most disagreements of juries are on matters of fact, which - are admitted to be within their province. We have little or no evidence - of their disagreements on matters of natural justice. The disagreements - of _courts_ on matters of law, afford little or no evidence that juries - would also disagree on matters of law—that is, _of justice_; because - the disagreements of courts are generally on matters of _legislation_, - and not on those principles of abstract justice, by which juries would - be governed, and in regard to which the minds of men are nearly - unanimous. - -[^75]: This is the principle of all voluntary associations - whatsoever. No voluntary association was ever formed, and in the nature - of things there never can be one formed, for the accomplishment of any - objects except those in which all the parties to the association are - agreed. Government, therefore, must be kept within these limits, or it - is no longer a voluntary association of all who contribute to its - support, but a mere tyranny established by a part over the rest. - - All, or nearly all, voluntary associations give to a majority, or to - some other portion of the members less than the whole, the right to use - some _limited_ discretion as to the means to be used to accomplish the - ends in view; but _the ends themselves to be accomplished_ are always - precisely defined, and are such as every member necessarily agrees to, - else he would not voluntarily join the association. - - Justice is the object of government, and those who support the - government, must be agreed as to the justice to be executed by it, or - they cannot rightfully unite in maintaining the government itself. - -[^76]: Jones on Bailments, 133. - -[^77]: Kent, describing the difficulty of construing the written - law, says: - - “Such is the imperfection of language, and the want of technical skill - in the makers of the law, that statutes often give occasion to the most - perplexing and distressing doubts and discussions, arising from the - ambiguity that attends them. It requires great experience, as well as - the command of a perspicuous diction, to frame a law in such clear and - precise terms, as to secure it from ambiguous expressions, and from all - doubts and criticisms upon its meaning.”—_Kent_, 460. - - The following extract from a speech of Lord Brougham, in the House of - Lords, confesses the same difficulty: - - “There was another subject, well worthy of the consideration of - government during the recess,—the expediency, _or rather the absolute - necessity_, of some arrangement for the preparation of bills, not merely - private, but public bills, _in order that legislation might be - consistent and systematic, and that the courts might not have so large a - portion of their time occupied in endeavoring to construe acts of - Parliament, in many cases unconstruable, and in most cases difficult to - be construed_.”—_Law Reporter_, 1848, p. 525. - -[^78]: This condemnation of written laws must, of course, be - understood as applying only to cases where principles and rights are - involved, and not as condemning any governmental arrangements, or - instrumentalities, that are consistent with natural right, and which - must be agreed upon for the purpose of carrying natural law into effect. - These things may be varied, as expediency may dictate, so only that they - be allowed to infringe no principle of justice. And they must, of - course, be written, because they do not exist as fixed principles, or - laws in nature. diff --git a/edited/06.markdown b/edited/06.markdown deleted file mode 100644 index de5e17a..0000000 --- a/edited/06.markdown +++ /dev/null @@ -1,687 +0,0 @@ -# JURIES OF THE PRESENT DAY ILLEGAL - - -It may probably be safely asserted that there are, at this day, no legal -juries, either in England or America. And if there are no legal juries, -there is, of course, no legal trial, nor “judgment,” by jury. - -In saying that there are probably no legal juries, I mean that there are -probably no juries appointed in conformity with the principles of the -_common law_. - -The term _jury_ is a technical one, derived from the common law; and -when the American constitutions provide for the trial by jury, they -provide for the _common law_ trial by jury; and not merely for any trial -by jury that the government itself may chance to invent, and call by -that name. It is the _thing_, and not merely the _name_, that is -guarantied. Any legislation, therefore, that infringes any _essential -principle_ of the _common law_, in the selection of jurors, is -unconstitutional; and the juries selected in accordance with such -legislation are, of course, illegal, and their judgments void. - -It will also be shown, in a subsequent chapter,[^79] that since Magna -Carta, the legislative power in England (whether king or parliament) has -never had any constitutional authority to infringe, by legislation, any -essential principle of the common law in the selection of jurors. All -such legislation is as much unconstitutional and void, as though it -abolished the trial by jury altogether. In reality it does abolish it. - -What, then, are the _essential principles_ of the common law, -controlling the selection of jurors? - -They are two. - -1. That _all_ the freemen, or adult male members of the state, shall be -eligible as jurors.[^80] - -Any legislation which requires the selection of jurors to be made from a -less number of freemen than the whole, makes the jury selected an -illegal one. - -If a part only of the freemen, or members of the state, are eligible as -jurors, the jury no longer represent “the country,” but only a part of -“the country.” - -If the selection of jurors can be restricted to any less number of -freemen than the whole, it can be restricted to a very small proportion -of the whole; and thus the government be taken out of the hands of “the -country,” or the whole people, and be thrown into the hands of a few. - -That, at common law, the whole body of freemen were eligible as jurors -is sufficiently proved, not only by the reason of the thing, but by the -following evidence: - -1. Everybody must be presumed eligible, until the contrary be shown. We -have no evidence, that I am aware of, of a prior date to Magna Carta, to -_disprove_ that all freemen were eligible as jurors, unless it be the -law of Ethelred, which requires that they be elderly[^81] men. Since no -specific age is given, it is probable, I think, that this statute meant -nothing more than that they be more than twenty-one years old. If it -meant anything more, it was probably contrary to the common law, and -therefore void. - -2. Since Magna Carta, we have evidence showing quite conclusively that -all freemen, above the age of twenty-one years, were eligible as jurors. - -The _Mirror of Justices_, (written within a century after Magna Carta,) -in the section “_Of Judges_”—that is, _jurors_—says: - -> “All those who are not forbidden by law may be judges (jurors). To -> women it is forbidden by law that they be judges; and thence it is, -> that feme coverts are exempted to do suit in inferior courts. On the -> other part, a villein cannot be a judge, by reason of the two -> estates, which are repugnants; persons attainted of false judgments -> cannot be judges, nor infants, nor any under the age of twenty-one -> years, nor infected persons, nor idiots, nor madmen, nor deaf, nor -> dumb, nor parties in the pleas, nor men excommunicated by the bishop, -> nor criminal persons. * * And those who are not of the Christian -> faith cannot be judges, nor those who are out of the king’s -> allegiance.”—_Mirror of Justices_, 59-60. - -In the section “_Of Inferior Courts_,” it is said: - -> “From the first assemblies came consistories, which we now call -> courts, and that in divers places, and in divers manners; whereof the -> sheriffs held one monthly, or every five weeks, according to the -> greatness or largeness of the shires. And these courts are called -> county courts, _where the judgment is by the suitors_, if there be no -> writ, and is by warrant of jurisdiction ordinary. The other inferior -> courts are the courts of every lord of the fee, to the likeness of -> the hundred courts. * * There are other inferior courts which the -> bailiffs hold in every hundred, from three weeks to three weeks, _by -> the suitors of the freeholders of the hundred. All the tenants within -> the fees are bounden to do their suit there_, and that not for the -> service of their persons, but for the service of their fees. But -> women, infants within the age of twenty-one years, deaf, dumb, -> idiots, those who are indicted or appealed of mortal felony, before -> they be acquitted, diseased persons, and excommunicated persons are -> exempted from doing suit.”—_Mirror of Justices_, 50-51. - -In the section “_Of the Sheriff’s Turns_,” it is said: - -> “The sheriffs by ancient ordinances hold several meetings twice in -> the year in every hundred; _where all the freeholders within the -> hundred_ are bound to appear for the service of their fees.”—_Mirror -> of Justices_, 50. - -The following statute was passed by Edward I., seventy years after Magna -Carta: - -> “Forasmuch also as sheriffs, hundreders, and bailiffs of liberties, -> have used to grieve those which be placed under them, putting in -> assizes and juries men diseased and decrepit, and having continual or -> sudden disease; and men also that dwelled not in the country at the -> time of the summons; and summon also an unreasonable number of -> jurors, for to extort money from some of them, for letting them go -> in peace, and so the assizes and juries pass many times by poor men, -> and the rich abide at home by reason of their bribes; it is ordained -> that from henceforth in one assize no more shall be summoned than -> four and twenty; and old men above three score and ten years, being -> continually sick, or being diseased at the time of the summons, or -> not dwelling in that country, shall not be put in juries of petit -> assizes.”—_St. 13 Edward I._, ch. 38. (1285.) - -Although this command to the sheriffs and other officers, not to summon, -as jurors, those who, from age and disease, were physically incapable of -performing the duties, may not, of itself, afford any absolute or legal -implication, by which we can determine precisely who were, and who were -not, eligible as jurors at common law, yet the exceptions here made -nevertheless carry a seeming confession with them that, at common law, -all male adults were eligible as jurors. - -But the main principle of the feudal system itself shows that _all_ the -full and free adult male members of the state—that is, all who were -free born, and had not lost their civil rights by crime, or -otherwise—_must_, at common law, have been eligible as jurors. What was -that principle? It was, that the state rested for support upon the land, -and not upon taxation levied upon the people personally. The lands of -the country were considered the property of the state, and were made to -support the state _in this way_. A portion of them was set apart to the -king, the rents of which went to pay his personal and official -expenditures, not including the maintenance of armies, or the -administration of justice. War and the administration of justice were -provided for in the following manner. The freemen, or the freeborn adult -male members of the state—who had not forfeited their political -rights—were entitled to land _of right_, (until all the land was taken -up,) on condition of their rendering certain military and civil services -to the state. The military services consisted in serving personally as -soldiers, or contributing an equivalent in horses, provisions, or other -military supplies. The civil services consisted, among other things, in -serving as jurors (and, it would appear, as witnesses) in the courts of -justice. For these services they received no compensation other than -the use of their lands. In this way the state was sustained; and the -king had no power to levy additional burdens or taxes upon the people. -The persons holding lands on these terms were called _freeholders_—in -later times _freemen_—meaning free and full members of the state. - -Now, as the principle of the system was that the freeholders held their -lands of the state, on the condition of rendering these military and -civil services as _rents_ for their lands, the principle implies that -_all_ the freeholders were liable to these rents, and were therefore -eligible as jurors. Indeed, I do not know that it has ever been doubted -that, at common law, _all_ the freeholders were eligible as jurors. If -all had not been eligible, we unquestionably should have had abundant -evidence of the exceptions. And if anybody, at this day, allege any -exceptions, the burden will be on him to prove them. The presumption -clearly is that _all_ were eligible. - -The first invasion, which I find made, by the English statutes, upon -this common law principle, was made in 1285, seventy years after Magna -Carta. It was then enacted as follows: - -> “Nor shall any be put in assizes or juries, though they ought to be -> taken in their own shire, that hold a tenement of less than the value -> of _twenty shillings yearly_. And if such assizes and juries be taken -> out of the shire, no one shall be placed in them who holds a tenement -> of less value than forty shillings yearly at the least, except such -> as be witnesses in deeds or other writings, whose presence is -> necessary, so that they be able to travel.”—_St. 13 Edward I._, ch. -> 38. (1285.) - -The next invasion of the common law, in this particular, was made in -1414, about two hundred years after Magna Carta, when it was enacted: - -> “That no person shall be admitted to pass in any inquest upon trial -> of the death of a man, nor in any inquest betwixt party and party in -> plea real, nor in plea personal, whereof the debt or the damage -> declared amount to forty marks, if the same person have not lands or -> tenements of the yearly value of _forty shillings above all charges -> of the same_.”—_2 Henry V._, st. 2, ch. 3. (1414.) - -Other statutes on this subject of the property qualifications of jurors, -are given in the note.[^82] - -From these statutes it will be seen that, since 1285, seventy years -after Magna Carta, the common law right of all free British subjects to -eligibility as jurors has been abolished, and the qualifications of -jurors have been made a subject of arbitrary legislation. In other -words, the government has usurped the authority of _selecting_ the -jurors that were to sit in judgment upon its own acts. This is -destroying the vital principle of the trial by jury itself, which is -that the legislation of the government shall be subjected to the -judgment of a tribunal, taken indiscriminately from the whole people, -without any choice by the government, and over which the government can -exercise no control. If the government can select the jurors, it will, -of course, select those whom it supposes will be favorable to its -enactments. And an exclusion of _any_ of the freemen from eligibility is -a _selection_ of those not excluded. - -It will be seen, from the statutes cited, that the most absolute -authority over the jury box—that is, over the right of the people to -sit in juries—has been usurped by the government; that the -qualifications of jurors have been repeatedly changed, and made to vary -from a freehold of _ten shillings yearly_, to one of “_twenty pounds by -the year at least above reprises_.” They have also been made different, -in the counties of Southampton, Surrey, and Sussex, from what they were -in the other counties; different in Wales from what they were in -England; and different in the city of London, and in the county of -Middlesex, from what they were in any other part of the kingdom. - -But this is not all. The government has not only assumed arbitrarily to -classify the people, on the basis of property, but it has even assumed -to give to some of its judges entire and absolute personal discretion in -the selection of the jurors to be impanelled in criminal cases, as the -following statutes show. - -> “Be it also ordained and enacted by the same authority, that all -> panels hereafter to be returned, which be not at the suit of any -> party, that shall be made and put in afore any justice of gaol -> delivery or justices of peace in their open sessions _to inquire for -> the king, shall hereafter be reformed by additions and taking out of -> names of persons by discretion of the same justices before whom such -> panel shall be returned; and the same justices shall hereafter -> command the sheriff, or his ministers in his absence, to put other -> persons in the same panel by their discretions; and that panel so -> hereafter to be made, to be good and lawful_. This act to endure only -> to the next Parliament.”—_11 Henry VII._, ch. 24, sec. 6. (1495.) - -This act was continued in force by 1 Henry VIII., ch. 11, (1509,) to the -end of the then next Parliament. - -It was reënacted, and made perpetual, by 3 Henry VIII., ch. 12. (1511.) - -_These acts gave unlimited authority to the king’s justices to pack -juries at their discretion; and abolished the last vestige of the common -law right of the people to sit as jurors, and judge of their own -liberties, in the courts to which the acts applied._ - -Yet, as matters of law, these statutes were no more clear violations of -the common law, the fundamental and paramount “law of the land,” than -were those statutes which affixed the property qualifications before -named; because, if the king, or the government, can select the jurors on -the ground of property, it can select them on any other ground -whatever. - -Any infringement or restriction of the common law right of the whole -body of the freemen of the kingdom to eligibility as jurors, was legally -an abolition of the trial by jury itself. The juries no longer -represented “the country,” but only a part of the country; that part, -too, on whose favor the government chose to rely for the maintenance of -its power, and which it therefore saw fit to select as being the most -reliable instruments for its purposes of oppression towards the rest. -And the selection was made on the same principle, on which tyrannical -governments generally select their supporters, viz., that of -conciliating those who would be most dangerous as enemies, and most -powerful as friends—that is, the wealthy.[^83] - -These restrictions, or indeed any one of them, of the right of -eligibility as jurors, was, in principle, a complete abolition of the -English constitution; or, at least, of its most vital and valuable part. -It was, in principle, an assertion of a right, on the part of the -government, to _select_ the individuals who were to determine the -authority of its own laws, and the extent of its own powers. It was, -therefore, _in effect_, the assertion of a right, on the part of the -government itself, to determine its own powers, and the authority of its -own legislation, over the people; and a denial of all right, on the part -of the people, to judge of or determine their own liberties against the -government. It was, therefore, in reality, a declaration of entire -absolutism on the part of the government. It was an act as purely -despotic, _in principle_, as would have been the express abolition of -all juries whatsoever. By “the law of the land,” which the kings were -sworn to maintain, every free adult male British subject was eligible to -the jury box, with full power to exercise his own judgment as to the -authority and obligation of every statute of the king, which might come -before him. But the principle of these statutes (fixing the -qualifications of jurors) is, that nobody is to sit in judgment upon the -acts or legislation of the king, or the government, except those whom -the government itself shall select for that purpose. A more complete -subversion of the essential principles of the English constitution could -not be devised. - -The juries of England are illegal for another reason, viz., that the -statutes cited require the jurors (except in London and a few other -places) to be _freeholders_. All the other free British subjects are -excluded; whereas, at common law, all such subjects are eligible to sit -in juries, whether they be freeholders or not. - -It is true, the ancient common law required the jurors to be -freeholders; but the term _freeholder_ no longer expresses the same idea -that it did in the ancient common law; because no land is now holden in -England on the same principle, or by the same tenure, as that on which -all the land was held in the early times of the common law. - -As has heretofore been mentioned, in the early times of the common law -the land was considered the property of the state; and was all holden by -the _tenants_, so called, (that is, _holders_,) on the condition of -their rendering certain military and civil services to the state, (or to -the king as the representative of the state,) under the name of _rents_. -Those who held lands on these terms were called free _tenants_, that is, -_free holders_—meaning free persons, or members of the state, holding -lands—to distinguish them from villeins, or serfs, who were not members -of the state, but held their lands by a more servile tenure, and also to -distinguish them from persons of foreign birth, outlaws, and all other -persons, who were not members of the state. - -Every freeborn adult male Englishman (who had not lost his civil rights -by crime or otherwise) was entitled to land of _right_; that is, by -virtue of his civil freedom, or membership of the body politic. Every -member of the state was therefore a freeholder; and every freeholder was -a member of the state. And the members of the state were therefore -called freeholders. But what is material to be observed, is, that a -man’s right to land was an incident to his _civil freedom_; not his -civil freedom an incident to his right to land. He was a freeholder -because he was a _freeborn_ member of the state; and not a freeborn -member of the state because he was a freeholder; for this last would be -an absurdity. - -As the tenures of lands changed, the term _freeholder_ lost its original -significance, and no longer described a man who held land of the state -by virtue of his civil freedom, but only one who held it in -fee-simple—that is, free of any liability to military or civil -services. But the government, in fixing the qualifications of jurors, -has adhered to the term _freeholder_ after that term has ceased to -express the _thing_ originally designated by it. - -The principle, then, of the common law, was, that every freeman, or -freeborn male Englishman, of adult age, &c., was eligible to sit in -juries, by virtue of his civil freedom, or his being a member of the -state, or body politic. But the principle of the present English -statutes is, that a man shall have a right to sit in juries because he -owns lands in fee-simple. At the common law a man was _born_ to the -right to sit in juries. By the present statutes he _buys_ that right -when he buys his land. And thus this, the greatest of all the political -rights of an Englishman, has become a mere article of merchandise; a -thing that is bought and sold in the market for what it will bring. - -Of course, there can be no legality in such juries as these; but only in -juries to which every free or natural born adult male Englishman is -eligible. - -The second essential principle of the common law, controlling the -selection of jurors, is, that when the selection of the actual jurors -comes to be made, (from the whole body of male adults,) that selection -shall be made in some mode that excludes the possibility of choice _on -the part of the government_. - -Of course, this principle forbids the selection to be made _by any -officer of the government_. - -There seem to have been at least three modes of selecting the jurors, at -the common law. 1. By lot.[^84] 2. Two knights, or other freeholders, -were appointed, (probably by the sheriff,) to select the jurors. 3. By -the sheriff, bailiff, or other person, who held the court, or rather -acted as its ministerial officer. Probably the latter mode may have been -the most common, although there may be some doubt on this point. - -At the common law the sheriffs, bailiffs, and other officers _were -chosen by the people, instead of being appointed by the king_. (_4 -Blackstone_, 413. _Introduction to Gilbert’s History of the Common -Pleas_, p. 2, _note_, and p. 4.) This has been shown in a former -chapter.[^85] At common law, therefore, jurors selected by these officers -were legally selected, so far as the principle now under discussion is -concerned; that is, they were not selected by any officer who was -dependent on the government. - -But in the year 1315, one hundred years after Magna Carta, the choice of -sheriffs was taken from the people, and it was enacted: - -> “That the sheriffs shall henceforth be assigned by the chancellor, -> treasurer, barons of the exchequer, and by the justices. And in the -> absence of the chancellor, by the treasurer, barons and -> justices.”—_9 Edward II._, st. 2. (1315.) - -These officers, who appointed the sheriffs, were themselves appointed by -the king, and held their offices during his pleasure. Their appointment -of sheriffs was, therefore, equivalent to an appointment by the king -himself. And the sheriffs, thus appointed, held their offices only -during the pleasure of the king, and were of course mere tools of the -king; and their selection of jurors was really a selection by the king -himself. In this manner the king usurped the selection of the jurors who -were to sit in judgment upon his own laws. - -Here, then, was another usurpation, by which the common law trial by -jury was destroyed, so far as related to the county courts, in which the -sheriffs presided, and which were the most important courts of the -kingdom. From this cause alone, if there were no other, there has not -been a legal jury in a _county_ court in England, for more than five -hundred years. - -In nearly or quite all the States of the United States the juries are -illegal, for one or the other of the same reasons that make the juries -in England illegal. - -In order that the juries in the United States may be legal—that is, in -accordance with the principles of the common law—it is necessary that -every adult male member of the state should have his name in the jury -box, or be eligible as a juror. Yet this is the case in hardly a single -state. - -In New Jersey, Maryland, North Carolina, Tennessee, and Mississippi, the -jurors are required to be _freeholders_. But this requirement is -illegal, for the reason that the term _freeholder_, in this country, has -no meaning analogous to the meaning it had in the ancient common law. - -In Arkansas, Missouri, Indiana, and Alabama, jurors are required to be -“freeholders or householders.” Each of these requirements is illegal. - -In Florida, they are required to be “householders.” - -In Connecticut, Maine, Ohio, and Georgia, jurors are required to have -the qualifications of “electors.” - -In Virginia, they are required to have a property qualification of one -hundred dollars. - -In Maine, Massachusetts, Vermont, Connecticut, New York, Ohio, Indiana, -Michigan, and Wisconsin, certain civil authorities of the towns, cities, -and counties are authorized to select, once in one, two, or three years, -a certain number of the people—a small number compared with the -whole—from whom jurors are to be taken when wanted; thus disfranchising -all except the few thus selected. - -In Maine and Vermont, the inhabitants, by vote in town meeting, have a -veto upon the jurors selected by the authorities of the town. - -In Massachusetts, the inhabitants, by vote in town meeting, can strike -out any names inserted by the authorities, and insert others; thus -making jurors elective by the people, and, of course, representatives -only of a majority of the people. - -In Illinois, the jurors are selected, for each term of court, by the -county commissioners. - -In North Carolina, “_the courts of pleas and quarter sessions_ * * shall -select the names of such persons only as are freeholders, and as are -well qualified to act as jurors, &c.; thus giving the courts power to -pack the juries.”—(_Revised Statutes_, 147.) - -In Arkansas, too, “It shall be the duty of the _county court_ of each -county * * to make out and cause to be delivered to the sheriff a list -of not less than sixteen, nor more than twenty-three persons, qualified -to serve as _grand_ jurors;” and the sheriff is to summon such persons -to serve as _grand_ jurors. - -In Tennessee, also, the jurors are to be selected by the _county -courts_. - -In Georgia, the jurors are to be selected by “the justices of the -inferior courts of each county, together with the sheriff and clerk, or -a majority of them.” - -In Alabama, “the sheriff, judge of the county court, and clerks of the -circuit and county courts,” or “a majority of” them, select the jurors. - -In Virginia, the jurors are selected by the sheriffs; but the sheriffs -are appointed by the governor of the state, and that is enough to make -the juries illegal. Probably the same objection lies against the -legality of the juries in some other states. - -How jurors are appointed, and what are their qualifications, in New -Hampshire, Rhode Island, Pennsylvania, Delaware, South Carolina, -Kentucky, Iowa, Texas, and California, I know not. There is little doubt -that there is some valid objection to them, of the kinds already -suggested, in all these states. - -In regard to jurors in the courts of the United States, it is enacted, -by act of Congress: - -> “That jurors to serve in the courts of the United States, in each -> state respectively, shall have the like qualifications, and be -> entitled to the like exemptions, as jurors of the highest court of -> law of such state now have and are entitled to, and shall hereafter, -> from time to time, have and be entitled to, and shall be designated -> by ballot, lot, or otherwise, according to the mode of forming such -> juries now practised and hereafter to be practised therein, in so far -> as such mode may be practicable by the courts of the United States, -> or the officers thereof; and for this purpose, the said courts shall -> have power to make all necessary rules and regulations for conforming -> the designation and empanelling of jurors, in substance, to the laws -> and usages now in force in such state; and, further, shall have -> power, by rule or order, from time to time, to conform the same to -> any change in these respects which may be hereafter adopted by the -> legislatures of the respective states for the state courts.”—_St._ -> 1840, ch. 47, _Statutes at Large_, vol. 5, p. 394. - -In this corrupt and lawless manner, Congress, instead of taking care to -preserve the trial by jury, so far as they might, by providing for the -appointment of legal juries—incomparably the most important of all our -judicial tribunals, and the only ones on which the least reliance can be -placed for the preservation of liberty—have given the selection of them -over entirely to the control of an indefinite number of state -legislatures, and thus authorized each state legislature to adapt the -juries of the United States to the maintenance of any and every system -of tyranny that may prevail in such state. - -Congress have as much constitutional right to give over all the -functions of the United States government into the hands of the state -legislatures, to be exercised within each state in such manner as the -legislature of such state shall please to exercise them, as they have to -thus give up to these legislatures the selection of juries for the -courts of the United States. - -There has, probably, never been a legal jury, nor a legal trial by jury, -in a single court of the United States, since the adoption of the -constitution. - -These facts show how much reliance can be placed in written -constitutions, to control the action of the government, and preserve the -liberties of the people. - -If the real trial by jury had been preserved in the courts of the United -States—that is, if we had had legal juries, and the jurors had known -their rights—it is hardly probable that one tenth of the past -legislation of Congress would ever have been enacted, or, at least, -that, if enacted, it could have been enforced. - -Probably the best mode of appointing jurors would be this: Let the names -of _all_ the adult male members of the state, in each township, be kept -in a jury box, by the officers of the township; and when a court is to -be held for a county or other district, let the officers of a sufficient -number of townships be required (without seeing the names) to draw out a -name from their boxes respectively, to be returned to the court as a -juror. This mode of appointment would guard against collusion and -selection; and juries so appointed would be likely to be a fair epitome -of “the country.” - -[^79]: On the English Constitution. - -[^80]: Although all the freemen are legally eligible as jurors, - any one may nevertheless be challenged and set aside, at the trial, for - any special _personal_ disqualification; such as mental or physical - inability to perform the duties; having been convicted, or being under - charge, of crime; interest, bias, &c. But it is clear that the common - law allows none of these points to be determined by the court, but only - by “_triers_.” - -[^81]: What was the precise meaning of the Saxon word, which I - have here called _elderly_, I do not know. In the Latin translations it - is rendered by _seniores_, which may perhaps mean simply those who have - attained their majority. - -[^82]: In 1483 it was enacted, by a statute entitled “Of what - credit and estate those jurors must be which shall be impanelled in the - Sheriff’s Turn.” - - > “That no bailiff nor other officer from henceforth return or impanel - > any such person in any shire of England, to be taken or put in or - > upon any inquiry in any of the said Turns, but such as be of good - > name and fame, and having lands and tenements of freehold within the - > same shires, to the yearly value of _twenty shillings_ at the least, - > or else lands and tenements holden by custom of manor, commonly - > called _copy-hold_, within the said shires, to the yearly value of - > twenty-six shillings eight pence over all charges at the least.”—_1 - > Richard III._, ch. 4. (1483.) - - > In 1486 it was enacted, “That the justices of the peace of every - > shire of this realm for the time being may take, by their discretion, - > an inquest, whereof every man shall have lands and tenements to the - > yearly value of _forty shillings_ at the least, to inquire of the - > concealments of others,” &c., &c.—_3 Henry VII._, ch. 1 (1486.) - - A statute passed in 1494, in regard to jurors in the city of London, - enacts: - - > “That no person nor persons hereafter be impanelled, summoned, or - > sworn in any jury or inquest in courts within the same city, (of - > London,) except he be of lands, tenements, or goods and chattels, to - > the value of _forty marks_;[^86] and that no person or persons - > hereafter be impanelled, summoned, nor sworn in any jury or inquest - > in any court within the said city, for lands or tenements, or action - > personal, wherein the debt or damage amounteth to the sum of forty - > marks, or above, except he be in lands, tenements, goods, or - > chattels, to the value of _one hundred marks_.”—_11 Henry VII._, ch. - > 21. (1494.) - - The statute _4 Henry VIII._, ch. 3, sec. 4, (1512) requires jurors in - London to have “_goods_ to the value of one hundred marks.” - - > In 1494 it was enacted that “It shall be lawful to every sheriff of - > the counties of _Southampton_, _Surrey_, _and Sussex_, to impanel and - > summons twenty-four lawful men of such, inhabiting within the - > precinct of his or their turns, as owe suit to the same turn, whereof - > every one hath lands or freehold to the yearly value of _ten_ - > shillings, or copy-hold lands to the yearly value of _thirteen - > shillings four pence_, above all charges within any of the said - > counties, or men of less livelihood, if there be not so many there, - > notwithstanding the statute of _1 Richard III._, ch. 4. To endure to - > the next parliament.”—_11 Henry VII._, ch. 26. (1494.) - - This statute was continued in force by _19 Henry VII._, ch. 16. (1503.) - - > In 1531 it was enacted, “That every person or persons, being the - > king’s natural subject born, which either by the name of citizen, or - > of a freeman, or any other name, doth enjoy and use the liberties and - > privileges of any city, borough, or town corporate, where he dwelleth - > and maketh his abode, being worth in _movable goods and substance_ to - > the clear value of _forty pounds_, be henceforth admitted in trials - > of murders and felonies in every sessions and gaol delivery, to be - > kept and holden in and for the liberty of such cities, boroughs, and - > towns corporate, albeit they have no freehold; any act, statute, use, - > custom, or ordinance to the contrary hereof notwithstanding.”—_23 - > Henry VIII._, ch. 13. (1531.) - - > In 1585 it was enacted, “That in all cases where any jurors to be - > returned for trial of any issue or issues joined in any of the - > Queen’s majesty’s courts of King’s Bench, Common Pleas, and the - > Exchequer, or before justices of assize, by the laws of this realm - > now in force, ought to have estate of freehold in lands, tenements, - > or hereditaments, of the clear yearly value of _forty shillings_, - > that in every such case the jurors that shall be returned from and - > after the end of this present session of parliament, shall every of - > them have estate of freehold in lands, tenements, or hereditaments, - > to the clear yearly value of _four pounds_ at the least.”—_27 - > Elizabeth_, ch. 6. (1585.) - - > In 1664-5 it was enacted, “That all jurors (other than strangers upon - > trials _per medietatem linguæ_) who are to be returned for the trials - > of issues joined in any of (his) majesty’s courts of king’s bench, - > common pleas, or the exchequer, or before justices of assize, or nisi - > prius, oyer and terminer, gaol delivery, or general or quarter - > sessions of the peace, from and after the twentieth day of April, - > which shall be in the year of our Lord one thousand six hundred and - > sixty-five, in any county of this realm of England, shall every of - > them thon have, in their own name, or in trust for them, within the - > same county, _twenty pounds by the year_, at least, above reprises, - > in their own or their wives’ right, of freehold lands, or of ancient - > demesne, or of rents in fee, fee-tail, or for life. And that in every - > county within the dominion of Wales every such juror shall then have, - > within the same, _eight pounds by the year_, at the least, above - > reprises, in manner aforesaid. All which persons having such estate - > as aforesaid are hereby enabled and made liable to be returned and - > serve as jurors for the trial of issues before the justices - > aforesaid, any law or statute to the contrary in any wise - > notwithstanding.”—_16 and 17 Charles II._, ch. 3. (1664-5.) - - By a statute passed in 1692, jurors in England are to have landed - estates of the value of _ten pounds a year_; and jurors in Wales to have - similar estates of the realm of _six pounds a year_.—_4 and 5 William - and Mary_, ch. 24, sec. 14. (1692.) - - By the same statute, (sec. 18,) persons may be returned to serve upon - the _tales_ in any county of England, who shall have, within the same - county, _five pounds by the year_, above reprises, in the manner - aforesaid. - - By _St_. 3 _George II_., ch. 25, sec. 19, 20, no one is to be a juror in - London, who shall not be “an householder within the said city, and have - lands, tenements, or personal estate, to the value of _one hundred - pounds_.” - - By another statute, applicable only to the county of _Middlesex_, it is - enacted, - - > “That all leaseholders, upon leases where the improved rents or value - > shall amount to _fifty pounds or upwards per annum_, over and above - > all ground rents or other reservations payable by virtue of the said - > leases, shall be liable and obliged to serve upon juries when they - > shall be legally summoned for that purpose.”—_4 George II._, ch. 7, - > sec. 3. (1731.) - -[^83]: Suppose these statutes, instead of disfranchising all - whose freeholds were of less than the standard value fixed by the - statutes, had disfranchised all whose freeholds were of greater value - than the same standard—would anybody ever have doubted that such - legislation was inconsistent with the English constitution; or that it - amounted to an entire abolition of the trial by jury? Certainly not. Yet - it was as clearly inconsistent with the common law, or the English - constitution, to disfranchise those whose freeholds fell below any - arbitrary standard fixed by the government, as it would have been to - disfranchise all whose freeholds rose above that standard. - -[^84]: _Lingard_ says: “These compurgators or jurors * * were - sometimes * * _drawn by lot_.”—_1 Lingard’s History of England_, p. - 300. - -[^85]: Chapter 4, p. 120, note. - -[^86]: A mark was thirteen shillings and four pence. diff --git a/edited/07.markdown b/edited/07.markdown deleted file mode 100644 index cfffe37..0000000 --- a/edited/07.markdown +++ /dev/null @@ -1,842 +0,0 @@ -# ILLEGAL JUDGES - - -It is a principle of Magna Carta, and therefore of the trial by jury, -(for all parts of Magna Carta must be construed together,) that no judge -or other officer _appointed by the king_, shall preside in jury trials, -_in criminal cases_, or “pleas of the crown.” - -This provision is contained in the great charters of both John and -Henry, and is second in importance only to the provision guaranteeing -the trial by jury, of which it is really a part. Consequently, without -the observance of this prohibition, there can be no genuine or -_legal_—that is, _common law_—trial by jury. - -At the common law, all officers who held jury trials, whether in civil -or criminal cases, were chosen by the people.[^87] - -But previous to Magna Carta, the kings had adopted the practice of -sending officers of their own appointment, called justices, into the -counties, to hold jury trials in some cases; and Magna Carta authorizes -this practice to be continued so far as it relates to _three_ kinds of -_civil_ actions, to wit: “novel disseisin, mort de ancestor, and darrein -presentment;”[^88] but specially forbids its being extended to criminal -cases, or pleas of the crown. - -This prohibition is in these words: - -> “Nullus vicecomes, constabularius, coronator, _vel alii balivi -> nostri_, teneant placita coronæ nostræ.” (No sheriff, constable, -> coroner, _or other our bailiffs_, shall hold pleas of our -> crown.)—_John’s Charter_, ch. 53. _Henry’s ditto_, ch. 17. - -Some persons seem to have supposed that this was a prohibition merely -upon officers _bearing the specific names of_ “_sheriffs, constables, -coroners and bailiffs_,” to hold criminal trials. But such is not the -meaning. If it were, the _name_ could be changed, and the _thing_ -retained; and thus the prohibition be evaded. The prohibition applies -(as will presently be seen) to all officers of the king whatsoever; and -it sets up a distinction between officers _of the king_, (“_our_ -bailiffs,”) and officers chosen by the people. - -The prohibition upon the king’s _justices_ sitting in criminal trials, -is included in the words “_vel alii balivi nostri_,” (or other our -bailiffs.) The word _bailiff_ was anciently a sort of general name for -_judicial officers_ and persons employed in and about the administration -of justice. In modern times its use, as applied to the higher grades of -judicial officers, has been superseded by other words; and it therefore -now, more generally, if not universally, signifies an executive or -police officer, _a servant of courts_, rather than one whose functions -are purely judicial. - -The word is a French word, brought into England by the Normans. - -> Coke says, “_Baylife_ is a French word, and signifies an officer -> concerned in the administration of justice of a certain province; and -> because a sheriff hath an office concerning the administration of -> justice within his county, or bailiwick, therefore he called his -> county _baliva sua_, (his bailiwick.) - -> “I have heard great question made what the true exposition of this -> word _balivus_ is. In the statute of Magna Carta, cap. 28, the letter -> of that statute is, _nullus balivus de cætero ponat aliquem ad legem -> manifestam nec ad juramentum simplici loquela sua sine testibus -> fidelibus ad hoc inductis_.” (No bailiff from henceforth shall put -> any one to his open law, nor to an oath (of self-exculpation) upon -> his own simple accusation, or complaint, without faithful witnesses -> brought in for the same.) “And some have said that _balivus_ in this -> statute signifieth _any judge_; for the law must be waged and made -> before the judge. And this statute (say they) extends to _the courts -> of common pleas_, _king’s bench_, &c., for they must bring with them -> _fideles testes_, (faithful witnesses,) &c., _and so hath been the -> usage to this day_.”—_1 Coke’s Inst._, 168 b. - -Coke makes various references, in his margin to Bracton, Fleta, and -other authorities, which I have not examined, but which, I presume, -support the opinion expressed in this quotation. - -Coke also, in another place, under the head of the chapter just cited -from Magna Carta, that “_no bailiff shall put any man to his open law_,” -&c., gives the following commentary upon it, from the _Mirror of -Justices_, from which it appears that in the time of Edward I., (1272 to -1307,) this word _balivus_ was understood to include _all judicial_, as -well as all other, officers of the king. - -> The Mirror says: “The point which forbiddeth that no _bailiff_ put a -> freeman to his oath without suit, is to be understood in this -> manner,—_that no justice, no minister of the king_, nor other -> steward, nor bailiff, have power to make a freeman make oath, (of -> self-exculpation,) _without the king’s command_,[^89] nor receive any -> plaint, without witnesses present who testify the plaint to be -> true.”—_Mirror of Justices_, ch. 5, sec. 2, p. 257. - -Coke quotes this commentary, (in the original French,) and then endorses -it in these words: - -> “By this it appeareth, that under this word _balivus_, in this act, -> is comprehended _every justice, minister of the king_, steward, and -> bailiff.”—2 _Inst._, 44. - -Coke also, in his commentary upon this very chapter of Magna Carta, that -provides that “_no sheriff, constable, coroner, or other our bailiffs, -shall hold pleas of our crown_,” expresses the opinion that it “_is a -general law_,” (that is, applicable to all officers of the king,) “by -reason of the words _vel alii balivi nostri_, (or other our bailiffs,) -_under which words are comprehended all judges or justices of any courts -of justice_.” And he cites a decision in the king’s bench, in the 17th -year of Edward I., (1289,) as authority; which decision he calls “a -notable and leading judgment.”—_2 Inst._, 30—1. - -And yet Coke, in flat contradiction of this decision, which he quotes -with such emphasis and approbation, and in flat contradiction also of -the definition he repeatedly gives of the word _balivus_, showing that -it embraced _all ministers of the king whatsoever_, whether high or low, -judicial or executive, fabricates an entirely gratuitous interpretation -of this chapter of Magna Carta, and pretends that after all it only -required that _felonies_ should be tried before the king’s _justices, on -account of their superior learning_; and that it permitted all lesser -offences to be tried before inferior officers, (meaning of course the -_king’s_ inferior officers.)—_2 Inst._, 30. - -And thus this chapter of Magna Carta, which, according to his own -definition of the word _balivus_, applies to all officers of the king; -and which, according to the common and true definition of the term -“pleas of the crown,” applies to all criminal cases without distinction, -and which, therefore, forbids any officer or minister of the king to -preside in a jury trial in any criminal case whatsoever, he coolly and -gratuitously interprets into a mere senseless provision for simply -restricting the discretion of the king in giving _names_ to his own -officers who should preside at the trials of particular offences; as if -the king, who made and unmade all his officers by a word, could not -defeat the whole object of the prohibition, by appointing such -individuals as he pleased, to try such causes as he pleased, and calling -them by such names as he pleased, _if he were but permitted to appoint -and name such officers at all_; and as if it were of the least -importance what _name_ an officer bore, whom the king might appoint to a -particular duty.[^90] - -Coke evidently gives this interpretation solely because, as he was -giving a general commentary on Magna Carta, he was bound to give some -interpretation or other to every chapter of it; and for this chapter he -could invent, or fabricate, (for it is a sheer fabrication,) no -interpretation better suited to his purpose than this. It seems never to -have entered his mind, (or if it did, he intended that it should never -enter the mind of anybody else,) that the object of the chapter could be -to deprive the king of the power of putting his creatures into criminal -courts, to pack, cheat, and browbeat juries, and thus maintain his -authority by procuring the conviction of those who should transgress his -laws, or incur his displeasure. - -This example of Coke tends to show how utterly blind, or how utterly -corrupt, English judges, (dependent upon the crown and the legislature), -have been in regard to everything in Magna Carta, that went to secure -the liberties of the people, or limit the power of the government. - -Coke’s interpretation of this chapter of Magna Carta is of a piece with -his absurd and gratuitous interpretation of the words “_nec super eum -ibimus, nec super eum mittemus_,” which was pointed out in a former -article, and by which he attempted to give a _judicial_ power to the -king and his judges, where Magna Carta had given it only to a jury. It -is also of a piece with his pretence that there was a difference -between _fine_ and _amercement_, and that _fines_ might be imposed by -the king, and that juries were required only for fixing _amercements_. - -These are some of the innumerable frauds by which the English people -have been cheated out of the trial by jury. - -_Ex uno disce omnes._ From one judge learn the characters of all.[^91] - -I give in the note additional and abundant authorities for the meaning -ascribed to the word _bailiff_. The importance of the principle involved -will be a sufficient excuse for such an accumulation of authorities as -would otherwise be tedious and perhaps unnecessary.[^92] - -The foregoing interpretation of the chapter of Magna Carta now under -discussion, is corroborated by another chapter of Magna Carta, which -specially provides that the king’s justices shall “go through every -county” to “take the assizes” (hold jury trials) in three kinds of -_civil_ actions, to wit, “novel disseisin, mort de ancestor, and darrein -presentment;” but makes no mention whatever of their holding jury trials -in _criminal_ cases,—an omission wholly unlikely to be made, if it -were designed they should attend the trial of such causes. Besides, the -chapter here spoken of (in John’s charter) does not allow these justices -to sit _alone_ in jury trials, even in _civil_ actions; but provides -that four knights, chosen by the county, shall sit with them to keep -them honest. When the king’s justices were known to be so corrupt and -servile that the people would not even trust them to sit alone, in jury -trials, in _civil_ actions, how preposterous is it to suppose that they -would not only suffer them to sit, but to sit alone, in _criminal_ ones. - -It is entirely incredible that Magna Carta, which makes such careful -provision in regard to the king’s justices sitting in civil actions, -should make no provision whatever as to their sitting in _criminal_ -trials, if they were to be allowed to sit in them at all. Yet Magna -Carta has no provision whatever on the subject.[^93] - -But what would appear to make this matter absolutely certain is, that -unless the prohibition that “no bailiff, &c., _of ours_ shall hold pleas -of our crown,” apply to all officers of the king, justices as well as -others, it would be wholly nugatory for any practical or useful purpose, -because the prohibition could be evaded by the king, at any time, by -simply changing the titles of his officers. Instead of calling them -“sheriffs, coroners, constables and bailiffs,” he could call them -“_justices_,” or anything else he pleased; and this prohibition, so -important to the liberty of the people, would then be entirely defeated. -The king also could make and unmake “justices” at his pleasure; and if -he could appoint any officers whatever to preside over juries in -criminal trials, he could appoint any tool that he might at any time -find adapted to his purpose. It was as easy to make justices of Jeffreys -and Scroggs, as of any other material; and to have prohibited all the -king’s officers, _except his justices_, from presiding in criminal -trials, would therefore have been mere fool’s play. - -We can all perhaps form some idea, though few of us will be likely to -form any adequate idea, of what a different thing the trial by jury -would have been _in practice_, and of what would have been the -difference to the liberties of England, for five hundred years last -past, had this prohibition of Magna Carta, upon the king’s officers -sitting in the trial of criminal cases, been observed. - -The principle of this chapter of Magna Carta, as applicable to the -governments of the United States of America, forbids that any officer -appointed either by the executive or _legislative_ power, or dependent -upon them for their salaries, or responsible to them by impeachment, -should preside over a jury in criminal trials. To have the trial a legal -(that is, a _common law_) and true trial by jury, the presiding officers -must be chosen by the people, and be entirely free from all dependence -upon, and all accountability to, the executive and legislative branches -of the government.[^94] - -[^87]: The proofs of this principle of the common law have - already been given on page 120, _note_. - - There is much confusion and contradiction among authors as to the manner - in which sheriffs and other officers were appointed; some maintaining - that they were appointed by the king, others that they were elected by - the people. I imagine that both these opinions are correct, and that - several of the king’s officers bore the same official names as those - chosen by the people; and that this is the cause of the confusion that - has arisen on the subject. - - It seems to be a perfectly well established fact that, at common law, - several magistrates, bearing the names of aldermen, sheriffs, stewards, - coroners and bailiffs, were chosen by the people; and yet it appears, - from Magna Carta itself, that some of the _king’s_ officers (of whom he - must have had many) were also called “sheriffs, constables, coroners, - and bailiffs.” - - But Magna Carta, in various instances, speaks of sheriffs and bailiffs - as “_our_ sheriffs and bailiffs;” thus apparently intending to recognize - the distinction between officers _of the king_, bearing those names, and - other officers, bearing the same official names, but chosen by the - people. Thus it says that “no sheriff or bailiff _of ours_, or any other - (officer), shall take horses or carts of any freeman for carriage, - unless with the consent of the freeman himself.”—_John’s Charter_, ch. - 36. - - In a kingdom subdivided into so many counties, hundreds, tithings, - manors, cities and boroughs, each having a judicial or police - organization of its own, it is evident that many of the officers must - have been chosen by the people, else the government could not have - maintained its popular character. On the other hand, it is evident that - the king, the executive power of the nation, must have had large numbers - of officers of his own in every part of the kingdom. And it is perfectly - natural that these different sets of officers should, in many instances, - bear the same official names; and, consequently that the king, when - speaking of his own officers, as distinguished from those chosen by the - people, should call them “our sheriffs, bailiffs,” &c., as he does in - Magna Carta. - - I apprehend that inattention to these considerations has been the cause - of all the confusion of ideas that has arisen on this subject,—a - confusion very evident in the following paragraph from Dunham, which may - be given as an illustration of that which is exhibited by others on the - same points. - - > “Subordinate to the ealdormen were the _gerefas_, the sheriffs, or - > reeves, _of whom there were several in every shire, or county_. - > _There was one in every borough, as a judge._ There was one at every - > gate, who witnessed purchases outside the walls; and there was one, - > higher than either,—the high sheriff,—who was probably the reeve of - > the shire. This last _appears_ to have been appointed by the king. - > Their functions were to execute the decrees of the king, or - > ealdormen, to arrest prisoners, to require bail for their appearance - > at the sessions, to collect fines or penalties levied by the court of - > the shire, to preserve the public peace, _and to preside in a - > subordinate tribunal of their own_.”—_Dunham’s Middle Ages_, sec. 2, - > B. 2, ch. 1. 57 _Lardner’s Cab. Cyc._, p. 41. - - The confusion of _duties_ attributed to these officers indicates clearly - enough that different officers, bearing, the same official names, must - have had different duties, and have derived their authority from - different sources,—to wit, the king, and the people. - -[^88]: _Darrein presentment_ was an inquest to discover who - presented the last person to a church; _mort de ancestor_, whether the - last possessor was seized of land in demesne of his own fee; and _novel - disseisin_, whether the claimant had been unjustly disseized of his - freehold. - -[^89]: He has no power to do it, _either with, or without, the - king’s command_. The prohibition is absolute, containing no such - qualification as is here interpolated, viz., “_without the king’s - command_.” If it could be done _with_ the king’s command, the king would - be invested with arbitrary power in the matter. - -[^90]: The absurdity of this doctrine of Coke is made more - apparent by the fact that, at that time, the “justices” and other - persons appointed by the king to hold courts were not only dependent - upon the king for their offices, and removable at his pleasure, _but - that the usual custom was, not to appoint them with any view to - permanency, but only to give them special commissions for trying a - single cause, or for holding a single term of a court, or for making a - single circuit; which, being done, their commissions expired_. The king, - therefore, could, _and undoubtedly did, appoint any individual he - pleased, to try any cause he pleased, with a special view to the - verdicts he desired to obtain in the particular cases_. - - This custom of commissioning particular persons to hold jury trials, in - _criminal_ cases, (and probably also in _civil_ ones,) was of course a - usurpation upon the common law, but had been practised more or less from - the time of William the Conqueror. Palgrave says: - - > “The frequent absence of William from his insular dominions - > occasioned another mode of administration, _which ultimately produced - > still greater changes in the law_. It was the practice of appointing - > justiciars to represent the king’s person, to hold his court, to - > decide his pleas, to dispense justice on his behalf, to command the - > military levies, and to act as conservators of the peace in the - > king’s name.[^95] ... The justices who were assigned in the name of - > the sovereign, and whose powers were revocable at his pleasure, - > derived their authority merely from their grant.... Some of those - > judges were usually deputed for the purpose of relieving the king - > from the burden of his judicial functions.... The number as well as - > the variety of names of the justices appearing in the early - > chirographs of ‘Concords,’ leave reason for doubting whether, - > anterior to the reign of Henry III., (1216 to 1272,) _a court, whose - > members were changing at almost every session, can be said to have - > been permanently constituted. It seems more probable that the - > individuals who composed the tribunal were selected as suited the - > pleasure of the sovereign, and the convenience of the clerks and - > barons_; and the history of our legal administration will be much - > simplified, if we consider all those courts which were afterwards - > denominated the Exchequer, the King’s Bench, the Common Pleas, and - > the Chancery, _as being originally committees, selected by the king - > when occasion required_, out of a large body, for the despatch of - > peculiar branches of business, _and which committees, by degrees, - > assumed an independent and permanent existence_.... Justices - > itinerant, who, despatched throughout the land, decided the ‘Pleas of - > the Crown,’ may be obscurely traced in the reign of the Conqueror; - > _not, perhaps, appointed with much regularity, but despatched upon - > peculiar occasions and emergencies_.”—_1 Palgrave’s Rise and - > Progress_, &c., p. 289 to 293. - - The following statute, passed in 1354, (139 years after Magna Carta,) - shows that even after this usurpation of appointing “justices” of his - own, to try criminal cases, had probably become somewhat established in - practice, in defiance of Magna Carta, the king was in the habit of - granting special commissions to still other persons, (especially to - sheriffs,—_his_ sheriffs, no doubt,) to try particular cases: - - > “Because that the people of the realm have suffered many evils and - > mischiefs, for that sheriffs of divers counties, by virtue of - > commissions and general writs granted to them at their own suit, for - > their singular profit to gain of the people, have made and taken - > divers inquests to cause to indict the people at their will, and have - > taken fine and ransom of them to their own use, and have delivered - > them; whereas such persons indicted were not brought before the - > king’s justices to have their deliverance, it is accorded and - > established, for to eschew all such evils and mischiefs, that such - > commissions and writs before this time made shall be utterly - > repealed, and that from henceforth no such commissions shall be - > granted.”—_St. 28 Edward III._, ch. 9, (1354.) - - How silly to suppose that the illegality of these commissions to try - criminal cases, could have been avoided by simply granting them to - persons under the title of “_justices_,” instead of granting them to - “_sheriffs_.” The statute was evidently a cheat, or at least designed as - such, inasmuch as it virtually asserts the right of the king to appoint - his tools, under the name of “justices,” to try criminal cases, while it - _disavows_ his right to appoint them under the name of “sheriffs.” - - > Millar says: “When the king’s bench came to have its usual residence - > at Westminster, the sovereign was induced to _grant special - > commissions, for trying particular crimes_, in such parts of the - > country as were found most convenient; and this practice was - > _gradually_ modelled into a regular appointment of certain - > commissioners, empowered, at stated seasons, to perform circuits over - > the kingdom, and to hold courts in particular towns, for the trial of - > all sorts of crimes. These judges of the circuit, however, _never - > obtained an ordinary jurisdiction, but continued, on every occasion, - > to derive their authority from two special commissions_: that of - > _oyer and terminer_, by which they were appointed to hear and - > determine all treasons, felonies and misdemeanors, within certain - > districts; and that of _gaol delivery_, by which they were directed - > to try every prisoner confined in the gaols of the several towns - > falling under their inspection.”—_Millar’s Hist. View of Eng. Gov._, - > vol. 2, ch. 7, p. 282. - - The following extract from Gilbert shows to what lengths of usurpation - the kings would sometimes go, in their attempts to get the judicial - power out of the hands of the people, and entrust it to instruments of - their own choosing: - - > “From the time of the _Saxons_,” (that is, from the commencement of - > the reign of William the Conqueror,) “till the reign of Edward the - > first, (1272 to 1307,) the several county courts and sheriffs courts - > did decline in their interest and authority. The methods by which - > they were broken were two-fold. _First, by granting commissions to - > the sheriffs by writ of_ JUSTICIES, _whereby the sheriff had a - > particular jurisdiction granted him to be judge of a particular - > cause, independent of the suitors of the county court_,” (that is, - > without a jury;) “_and these commissions were after the Norman form, - > by which (according to which) all power of judicature was immediately - > derived from the king_.”—_Gilbert on the Court of Chancery_, p. 1. - - The several authorities now given show that it was the custom of the - _Norman_ kings, not only to appoint persons to sit as judges in jury - trials, in criminal cases, but that they also commissioned individuals - to sit in singular and particular cases, as occasion required; and that - they therefore readily _could_, and naturally _would_, and therefore - undoubtedly _did_, commission individuals with a special view to their - adaptation or capacity to procure such judgments as the kings desired. - - The extract from Gilbert suggests also the usurpation of the _Norman_ - kings, in their assumption that _they_, (and _not the people_, as by the - _common law_,) were the fountains of justice. It was only by virtue of - this illegal assumption that they could claim to appoint their tools to - hold courts. - - All these things show how perfectly lawless and arbitrary the kings were - both before and after Magna Carta, and how necessary to liberty was the - principle of Magna Carta and the common law, that no person appointed by - the king should hold jury trials in criminal cases. - -[^91]: The opinions and decisions of judges and courts are - undeserving of the least reliance, (beyond the intrinsic merit of the - arguments offered to sustain them,) and are unworthy even to be quoted - as evidence of the law, _when those opinions or decisions are favorable - to the power of the government, or unfavorable to the liberties of the - people_. The only reasons that their opinions, _when in favor of - liberty_, are entitled to any confidence, are, first, that all - presumptions of law are in favor of liberty; and, second, that the - admissions of all men, the innocent and the criminal alike, _when made - against their own interests_, are entitled to be received as true, - because it is contrary to human nature for a man to confess anything but - truth against himself. - - More solemn farces, or more gross impostures, were never practised upon - mankind, than are all, or very nearly all, those oracular responses by - which courts assume to determine that certain statutes, in restraint of - individual liberty, are within the constitutional power of the - government, and are therefore valid and binding upon the people. - - The reason why these courts are so intensely servile and corrupt, is, - that they are not only parts of, but the veriest creatures of, the very - governments whose oppressions they are thus seeking to uphold. They - receive their offices and salaries from, and are impeachable and - removable by, the very governments upon whose acts they affect to sit in - judgment. Of course, no one with his eyes open ever places himself in a - position so incompatible with the liberty of declaring his honest - opinion, unless he do it with the intention of becoming a mere - instrument in the hands of the government for the execution of all its - oppressions. - - As proof of this, look at the judicial history of England for the last - five hundred years, and of America from its settlement. In all that time - (so far as I know, or presume) no bench of judges, (probably not even - any single judge,) dependent upon the legislature that passed the - statute, has ever declared a single _penal_ statute invalid, on account - of its being in conflict either with the common law, which the judges in - England have been sworn to preserve, or with the written constitutions, - (recognizing men’s natural rights,) which the American judges were under - oath to maintain. Every oppression, every atrocity even, that has ever - been enacted in either country, by the legislative power, in the shape - of a criminal law, (or, indeed, in almost any other shape,) has been as - sure of a sanction from the judiciary that was dependent upon, and - impeachable by, the legislature that enacted the law, as if there were a - physical necessity that the legislative enactment and the judicial - sanction should go together. Practically speaking, the sum of their - decisions, all and singular, has been, that there are no limits to the - power of the government, and that the people have no rights except what - the government pleases to allow to them. - - It is extreme folly for a people to allow such dependent, servile, and - perjured creatures to sit either in civil or criminal trials; but to - allow them to sit in criminal trials, and judge of the people’s - liberties, is not merely fatuity,—it is suicide. - -[^92]: Coke, speaking of the word _bailiffs_, as used in the - statute of 1 _Westminster_, ch. 35, (1275,) says: - - > “Here _bailiffs_ are taken for the _judges of the court_, as - > manifestly appeareth hereby.”—2 _Inst._, 229. - - Coke also says, “It is a maxim in law, _aliquis non debet esse judex in - propria causa_, (no one ought to be judge in his own cause;) and - therefore a fine levied before the _baylifes of Salop_ was reversed, - because one of the _baylifes_ was party to the fine, _quia non potest - esse judex et pars_,” (because one cannot be _judge_ and party.)—_1 - Inst._, 141 a. - - In the statute of Gloucester, ch. 11 and 12, (1278,) “the mayor and - _bailiffs_ of London (undoubtedly chosen by the people, or at any rate - not appointed by the king) are manifestly spoken of as _judges_, or - magistrates, holding _jury_ trials, as follows: - - > _Ch. II._ “It is provided, also, that if any man lease his tenement - > in the city of London, for a term of years, and he to whom the - > freehold belongeth causeth himself to be impleaded by collusion, and - > maketh default after default, or cometh into court and giveth it up, - > for to make the termor (lessee) lose his term, (lease,) and the - > demandant hath his suit, so that the termor may recover by writ of - > covenant; _the mayor and bailiffs may inquire by a good inquest_, - > (_jury_,) in the presence of the termor and the demandant, whether - > the demandant moved his plea upon good right that he had, or by - > collusion, or fraud, to make the termor lose his term; and if it be - > found by the inquest (jury) that the demandant moved his plea upon - > good right that he had, the judgment shall be given forthwith; and if - > it be found by the inquest (jury) that he impleaded him (self) by - > fraud, to put the termor from his term, then shall the termor enjoy - > his term, and the execution of judgment for the demandant shall be - > suspended until the term be expired.”—_6 Edward I._, ch. 11, (1278.) - - > Coke, in his commentary on this chapter, calls this court of “the - > mayor and _bailiffs_” of London, “_the court of the hustings, the - > greatest and highest court in London;_” and adds, “other cities have - > the like court, and so called, as York, Lincoln, Winchester, &c. Here - > the city of London is named; but it appeareth by that which hath been - > said out of Fleta, that this act extends to such cities and boroughs - > privileged,—that is, such as have such privilege to hold plea as - > London hath.”—_2 Inst._, 322. - - The 12th chapter of the same statute is in the following words, which - plainly recognize the fact that “the mayor and _bailiffs_ of London” are - judicial officers holding courts in London. - - > “It is provided, also, that if a man, impleaded for a tenement in the - > same city, (London,) doth vouch a foreigner to warranty, that he - > shall come into the chancery, and have a writ to summon his warrantor - > at a certain day before the justices of the bench, _and another writ - > to the mayor and bailiffs of London, that they shall surcease_ - > (suspend proceedings) _in the matter that is before them by writ_, - > until the plea of the warrantee be determined before the justices of - > the bench; and when the plea at the bench shall be determined, then - > shall he that is vouched be commanded to go into the city,” (that is, - > before “the mayor and _bailiffs’_” court,) “to answer unto the chief - > plea; and a writ shall be awarded at the suit of the demandant by the - > justices _unto the mayor and bailiffs, that they shall proceed in the - > plea_,” &c.—_6 Edward I._, ch. 12, (1278.) - - Coke, in his commentary on this chapter, also speaks repeatedly of “the - mayor and _bailiffs_” _as judges holding courts_; and also speaks of - this chapter as applicable not only to “the citie of London, specially - named for the cause aforesaid, but extended by equity to all other - privileged places,” (that is, privileged to have a court of “mayor and - _bailiffs_,”) “where foreign voucher is made, as to Chester, Durham, - Salop,” &c.—_2 Inst._, 325-7. - - BAILIE.—In Scotch law, a municipal magistrate, corresponding with the - English _alderman_.[^96]—_Burrill’s Law Dictionary_. - - BAILIFFE.—_Baillif._ Fr. A bailiff: a ministerial officer with duties - similar to those of a sheriff.... _The judge of a court._ A municipal - magistrate, &c.—_Burrill’s Law Dict._ - - BAILIFF.... The word _bailiff_ is of Norman origin, and was applied in - England, at an early period, (after the example, it is said, of the - French,) to the chief magistrates of counties, or shires, such as the - alderman, the reeve, or sheriff, and also of inferior jurisdictions, - such as hundreds and wapentakes.—_Spelman, voc. Balivus; 1 Bl. Com._, - 344. _See Bailli_, _Ballivus_. The Latin _ballivus_ occurs, indeed, in - the laws of Edward the Confessor, but Spelman thinks it was introduced - by a later hand. _Balliva_ (bailiwick) was the word formed from - _ballivus_, to denote the extent of territory comprised within a - bailiff’s jurisdiction; and _bailiwick_ is still retained in writs and - other proceedings, as the name of a sheriff’s county.—_1 Bl. Com._, - 344. _See Balliva._ _The office of bailiff was at first strictly, though - not exclusively, a judicial one._ In France, the word had the sense of - what Spelman calls _justitia tutelaris_. _Ballivus_ occurs frequently in - the _Regiam Majestatem_, in the sense of a _judge_.—_Spelman._ In its - sense of a _deputy_, it was formerly applied, in England, to those - officers who, by virtue of a deputation, either from the sheriff or the - lords of private jurisdictions, exercised within the hundred, or - whatever might be the limits of their bailiwick, certain _judicial_ and - ministerial functions. With the disuse of private and local - jurisdictions, the meaning of the term became commonly restricted to - such persons as were deputed by the sheriff to assist him in the merely - ministerial portion of his duty; such as the summoning of juries, and - the execution of writs.—_Brande._ ... The word _bailiff_ is also - applied in England to the chief magistrates of certain towns and - jurisdictions, to the keepers of castles, forests and other places, and - to the stewards or agents of lords of manors.—_Burrill’s Law Dict._ - - “BAILIFF, (from the Lat. _ballivus_; Fr. _baillif_, i.e., _Præfectus - provinciæ_,) signifies an officer appointed for the administration of - justice within a certain district. The office, as well as the name, - appears to have been derived from the French,” &c.,—_Brewster’s - Encyclopedia._ - - Millar says, “The French monarchs, about this period, were not content - with the power of receiving appeals from the several courts of their - barons. An expedient was devised of sending royal _bailiffs_ into - different parts of the kingdom, with a commission to take cognizance of - all those causes in which the sovereign was interested, and in reality - for the purpose of abridging and limiting the subordinate jurisdiction - of the neighboring feudal superiors. By an edict of Phillip Augustus, in - the year 1190, those _bailiffs_ were appointed in all the principal - towns of the kingdom.”—_Millar’s Hist. View of the Eng. Gov._, vol. - ii., ch. 3, p. 126. - - > “BAILIFF-_office_.—Magistrates who formerly administered justice in - > the parliaments or courts of France, answering to the English - > sheriffs, as mentioned by Bracton.”—_Bouvier’s Law Dict._ - - > “There be several officers called _bailiffs_, whose offices and - > employments seem quite different from each other.... The chief - > magistrate, in divers ancient corporations, are called _bailiffs_, as - > in Ipswich, Yarmouth, Colchester, &c. There are, likewise, officers - > of the forest, who are termed bailiffs.”—_1 Bacon’s Abridgment_, - > 498-9. - - > “BAILIFF signifies a keeper or superintendent, and is directly - > derived from the French word _bailli_, which appears to come from the - > word _balivus_, and that from _bagalus_, a Latin word signifying - > generally a governor, tutor, or superintendent.... The French word - > _bailli_ is thus explained by Richelet, (_Dictionaire_, &c.:) - > _Bailli._—_He who in a province has the superintendence of justice, - > who is the ordinary judge of the nobles_, who is their head for the - > _ban_ and _arriere ban_,[^97] and who maintains the right and property - > of others against those who attack them.... All the various officers - > who are called by this name, though differing as to the nature of - > their employments, seem to have some kind of superintendence - > intrusted to them by their superior.”—_Political Dictionary._ - - “BAILIFF, _balivus_. From the French word _bayliff_, that is, _præfectus - provinciæ_, and as the name, so the office itself was answerable to that - of France, where there were eight parliaments, which were high courts - from whence there lay no appeal, and within the precincts of the several - parts of that kingdom which belonged to each parliament, _there were - several provinces to which justice was administered by certain officers - called bailiffs_; and in England we have several counties in which - justice hath been, and still is, in small suits, administered to the - inhabitants by the officer whom we now call _sheriff_, or _viscount_; - (one of which names descends from the Saxons, the other from the - Normans.) And, though the sheriff is not called _bailiff_, yet it was - probable that was one of his names also, because the county is often - called _balliva_; as in the return of a writ, where the person is not - arrested, the sheriff saith, _infra-nominatus_, _A.B. non est inventus - in balliva mea_, &c.; (the within named A.B. is not found in my - bailiwick, &c.) And in the statute of Magna Carta, ch. 28, and 14 Ed. 3, - ch. 9, the word _bailiff_ seems to comprise as well sheriffs, as - bailiffs of hundreds. - - “_Bailies_, in Scotland, are magistrates of burghs, possessed of certain - jurisdictions, having the same power within their territory as sheriffs - in the county.... - - “As England is divided into counties, so every county is divided into - hundreds; within which, in ancient times, the people had justice - administered to them by the several officers of every hundred, which - were the _bailiffs_. And it appears by Bracton, (_lib. 3, tract_. 2, ch. - 34,) that _bailiffs_ of hundreds might anciently hold plea of appeal and - approvers; but since that time the hundred courts, except certain - franchises, are swallowed in the county courts; and now the _bailiff’s_ - name and office is grown into contempt, they being generally officers to - serve writs, &c., within their liberties; though, in other respects, the - name is still in good esteem, for the chief magistrates in divers towns - are called _bailiffs_; and sometimes the persons to whom the king’s - castles are committed are termed _bailiffs_, as the _bailiff_ of Dover - Castle, &c. - - “Of the ordinary _bailiffs_ there are several sorts, viz., _bailiffs_ of - liberties; sheriffs’ _bailiffs_; _bailiffs_ of lords of manors; - _bailiffs_ of husbandry, &c.... - - “_Bailiffs_ of liberties or franchises are to be sworn to take - distresses, truly impanel jurors, make returns by indenture between them - and sheriffs, &c.... - - “_Bailiffs of courts baron_ summon those courts, and execute the process - thereof.... - - “Besides these, there are also _bailiffs of the forest_ ...”—_Jacob’s - Law Dict. Tomlin’s do._ - - “BAILIWICK, _balliva_,—is not only taken for the county, but signifies - generally that liberty which is exempted from the sheriff of the county, - over which the lord of the liberty appointeth a _bailiff_, with such - powers within his precinct as an under-sheriff exerciseth under the - sheriff of the county; such as the _bailiff_ of Westminster.”—_Jacob’s - Law Dict. Tomlin’s do._ - - “_A bailiff of a Leet, Court-baron, Manor, Balivus Letæ, Baronis, - Manerii._—He is one that is appointed by the lord, or his steward, - within every manor, to do such offices as appertain thereunto, as to - summon the court, warn the tenants and resiants; also, to summon the - Leet and Homage, levy fines, and make distresses, &c., of which you may - read at large in _Kitchen’s Court-leet and Court-baron_.”—_A Law - Dictionary, anonymous_, (_in Suffolk Law Library_.) - - “BAILIFF.—In England an officer appointed by the sheriff. Bailiffs are - either special, and appointed, for their adroitness, to arrest persons; - or bailiffs of hundreds, who collect fines, summon juries, attend the - assizes, and execute writs and processes. _The sheriff in England is the - king’s bailiff...._ - - “_The office of bailiff formerly was high and honorable in England, and - officers under that title on the continent are still invested with - important functions._”—_Webster._ - - “BAILLI, (Scotland.)—An alderman; a magistrate who is second in rank in - a royal burgh.”—_Worcester._ - - “_Baili, or Bailiff._—(Sorte d’officier de justice.) A bailiff; a sort - of magistrate.”—_Boyer’s French Dict._ - - “By some opinions, a _bailiff_, in Magna Carta, ch. 28, signifies _any - judge_.”—_Cunningham’s Law Dict._ - - “BAILIFF.—In the court of the Greek emperors there was a grand - _bajulos_, first tutor of the emperor’s children. The superintendent of - foreign merchants seems also to have been called _bajulos_; and, as he - was appointed by the Venetians, this title (balio) was transferred to - the Venetian ambassador. From Greece, the official _bajulos_ - (_ballivus_, _bailli_, in France; _bailiff_, in England,) was introduced - into the south of Europe, and denoted a superintendent; hence the eight - _ballivi_ of the knights of St. John, which constitute its supreme - council. In France, the royal bailiffs were commanders of the militia, - administrators or stewards of the domains, _and judges of their - districts_. In the course of time, only the first duty remained to the - bailiff; hence he was _bailli d’épée_, _and laws were administered in - his name by a lawyer, as his deputy, lieutenant de robe_. The - seigniories, with which high courts were connected, employed bailiffs, - who thus constituted, almost everywhere, _the lowest order of judges_. - From the courts of the nobility, the appellation passed to the royal - courts; from thence to the parliaments. In the greater bailiwicks of - cities of importance, Henry II. established a collegial constitution - under the name of _presidial courts_.... _The name of bailiff was - introduced into England with William I._ The counties were also called - _bailiwicks_, (_ballivæ_,) while the subdivisions were called - _hundreds_; but, as the courts of the hundreds have long since ceased, - the English bailiffs are only a kind of subordinate officers of justice, - like the French _huissiers_. These correspond very nearly to the - officers called _constables_ in the United States. Every sheriff has - some of them under him, for whom he is answerable. In some cities the - highest municipal officer yet bears this name, as the high bailiff of - Westminster. In London, the Lord Mayor is at the same time bailiff, - (which title he bore before the present became usual,) _and administers, - in this quality, the criminal jurisdiction of the city, in the court of - old Bailey_, where there are, annually, eight sittings of the court, for - the city of London and the county of Middlesex. _Usually, the recorder - of London supplies his place as judge._ In some instances the term - _bailiff_, in England, is applied to the chief magistrates of towns, or - to the commanders of particular castles, as that of Dover. The term - _baillie_, in Scotland, is applied to a judicial police-officer, having - powers very similar to those of justices of peace in the United - States.”—_Encyclopædia Americana._ - -[^93]: Perhaps it may be said (and such, it has already been - seen, is the opinion of Coke and others) that the chapter of Magna - Carta, that “no _bailiff_ from henceforth shall put any man to his open - law, (put him on trial,) nor to an oath (that is, an oath of - self-exculpation) upon his (the bailiff’s) own accusation or testimony, - without credible witnesses brought in to prove the charge,” _is itself_ - a “provision in regard to the king’s justices sitting in criminal - trials,” and therefore implies that _they are to sit_ in such trials. - - But, although the word _bailiff_ includes all _judicial_, as well as - other, officers, and would therefore in this case apply to the king’s - justices, if they were to sit in criminal trials; yet this particular - chapter of Magna Carta evidently does not contemplate “_bailiffs_” while - acting in their _judicial_ capacity, (for they were not allowed to sit - in criminal trials at all,) but only in the character of _witnesses_; - and that the meaning of the chapter is, that the simple testimony - (simplici loquela) of “no bailiff,” (of whatever kind,) unsupported by - other and “credible witnesses,” shall be sufficient to put any man on - trial, or to his oath of self-exculpation.[^98] - - It will be noticed that the words of this chapter are _not_, “no bailiff - _of ours_,”—that is, _of the king_,—as in some other chapters of Magna - Carta; but simply “no bailiff,” &c. The prohibition, therefore, applies - to all “bailiffs,”—to those chosen by the people, as well as those - appointed by the king. And the prohibition is obviously founded upon the - idea (a very sound one in that age certainly, and probably also in this) - that public officers (whether appointed by king or people) have - generally, or at least frequently, too many interests and animosities - against accused persons, to make it safe to convict any man on their - testimony alone. - - The idea of Coke and others, that the object of this chapter was simply - to forbid _magistrates_ to put a man on trial, when there were no - witnesses against him, but only the simple accusation or testimony of - the magistrates themselves, before whom he was to be tried, is - preposterous; for that would be equivalent to supposing that magistrates - acted in the triple character of judge, jury and witnesses, _in the same - trial_; and that, therefore, _in such cases_, they needed to be - prohibited from condemning a man on their own accusation or testimony - alone. But such a provision would have been unnecessary and senseless, - for two reasons; first, because the bailiffs or magistrates had no power - to “hold pleas of the crown,” still less to try or condemn a man; that - power resting wholly with the juries; second, because if bailiffs or - magistrates could try and condemn a man, without a jury, the prohibition - upon their doing so upon their own accusation or testimony alone, would - give no additional protection to the accused, so long as these same - bailiffs or magistrates were allowed to decide what weight should be - given, _both to their own testimony and that of other witnesses_; for, - if they wished to convict, they would of course decide that any - testimony, however frivolous or irrelevant, _in addition to their own_, - was sufficient. Certainly a magistrate could always procure witnesses - enough to testify to something or other, which _he himself_ could decide - to be corroborative of his own testimony. And thus the prohibition would - be defeated in fact, though observed in form. - -[^94]: In this chapter I have called the justices “_presiding_ - officers,” solely for the want of a better term. They are not - “_presiding_ officers,” in the sense of having any authority over the - jury; but are only assistants to, and teachers and servants of, the - jury. The foreman of the jury is properly the “presiding officer,” so - far as there is such an officer at all. The sheriff has no authority - except over other persons than the jury. - -[^95]: In this extract, Palgrave seems to assume that the king - himself had a right to sit as judge, in _jury_ trials, in the _county_ - courts, in both civil and criminal cases. I apprehend he had no such - power at the _common law_, but only to sit in the trial of appeals, and - in the trial of peers, and of civil suits in which peers were parties, - and possibly in the courts of ancient demesne. - -[^96]: _Alderman_ was a title anciently given to various - _judicial_ officers, as the Alderman of all England, Alderman of the - King, Alderman of the County, Alderman of the City or Borough, Alderman - of the Hundred or Wapentake. These were all _judicial_ officers. See Law - Dictionaries. - -[^97]: “_Ban and arriere ban_, a proclamation, whereby all that - hold lands of the crown, (except some privileged officers and citizens,) - are summoned to meet at a certain place in order to serve the king in - his wars, either personally, or by proxy.”—_Boyer._ - -[^98]: At the common law, parties, in both civil and criminal - cases, were allowed to swear in their own behalf; and it will be so - again, if the true trial by jury should be reëstablished. diff --git a/edited/08.markdown b/edited/08.markdown deleted file mode 100644 index 6290e40..0000000 --- a/edited/08.markdown +++ /dev/null @@ -1,213 +0,0 @@ -# THE FREE ADMINISTRATION OF JUSTICE - - -The free administration of justice was a principle of the common law; -and it must necessarily be a part of every system of government which is -not designed to be an engine in the hands of the rich for the oppression -of the poor. - -In saying that the free administration of justice was a principle of the -common law, I mean only that parties were subjected to no costs for -jurors, witnesses, writs, or other necessaries for the trial, -_preliminary to the trial itself_. Consequently, no one could lose the -benefit of a trial, for the want of means to defray expenses. _But after -the trial_, the plaintiff or defendant was liable to be amerced, (by the -jury, of course,) for having troubled the court with the prosecution or -defence of an unjust suit.[^99] But it is not likely that the losing -party was subjected to an amercement as a matter of course, but only in -those cases where the injustice of his cause was so evident as to make -him inexcusable in bringing it before the courts. - -All the freeholders were required to attend the courts, that they might -serve as jurors and witnesses, and do any other service that could -legally be required of them; and their attendance was paid for by the -state. In other words, their attendance and service at the courts were -part of the rents which they paid the state for their lands. - -The freeholders, who were thus required always to attend the courts, -were doubtless the only witnesses who were _usually_ required in _civil_ -causes. This was owing to the fact that, in those days, when the people -at large could neither write nor read, few contracts were put in -writing. The expedient adopted for proving contracts, was that of making -them in the presence of witnesses, who could afterwards testify to the -transactions. Most contracts in regard to lands were made at the courts, -in the presence of the freeholders there assembled.[^100] - -In the king’s courts it was specially provided by Magna Carta that -“justice and right” should not be “sold;” that is, that the king should -take nothing from the parties for administering justice. - -The oath of a party to the justice of his cause was all that was -necessary to entitle him to the benefit of the courts free of all -expense; (except the risk of being amerced after the trial, in case the -jury should think he deserved it.[^101]) - -_This principle of the free administration of justice connects itself -necessarily with the trial by jury, because a jury could not rightfully -give judgment against any man, in either a civil or criminal case, if -they had any reason to suppose he had been unable to procure his -witnesses._ - -The true trial by jury would also compel the free administration of -justice from another necessity, viz., that of preventing private -quarrels; because, unless the government enforced a man’s rights and -redressed his wrongs, _free of expense to him_, a jury would be bound to -protect him in taking the law into his own hands. A man has a natural -right to enforce his own rights and redress his own wrongs. If one man -owe another a debt, and refuse to pay it, the creditor has a natural -right to seize sufficient property of the debtor, wherever he can find -it, to satisfy the debt. If one man commit a trespass upon the person, -property or character of another, the injured party has a natural right, -either to chastise the aggressor, or to take compensation for the injury -out of his property. But as the government is an impartial party as -between these individuals, it is more likely to do _exact_ justice -between them than the injured individual himself would do. The -government, also, having more power at its command, is likely to right a -man’s wrongs more peacefully than the injured party himself could do it. -If, therefore, the government will do the work of enforcing a man’s -rights, and redressing his wrongs, _promptly, and free of expense to -him_, he is under a moral obligation to leave the work in the hands of -the government; but not otherwise. When the government forbids him to -enforce his own rights or redress his own wrongs, and deprives him of -all means of obtaining justice, except on the condition of his employing -the government to obtain it for him, _and of paying the government for -doing it_, the government becomes itself the protector and accomplice of -the wrong-doer. If the government will forbid a man to protect his own -rights, it is bound to do it for him, _free of expense to him_. And so -long as government refuses to do this, juries, if they knew their -duties, would protect a man in defending his own rights. - -Under the prevailing system, probably one half of the community are -virtually deprived of all protection for their rights, except what the -criminal law affords them. Courts of justice, for all civil suits, are -as effectually shut against them, as though it were done by bolts and -bars. Being forbidden to maintain their own rights by force,—as, for -instance, to compel the payment of debts,—and being unable to pay the -expenses of civil suits, they have no alternative but submission to many -acts of injustice, against which the government is bound either to -protect them, _free of expense_, or allow them to protect themselves. - -There would be the same reason in compelling a party to pay the judge -and jury for their services, that there is in compelling him to pay the -witnesses, or any other _necessary_ charges.[^102] - -This compelling parties to pay the expenses of civil suits is one of the -many cases in which government is false to the fundamental principles on -which free government is based. What is the object of government, but to -protect men’s rights? On what principle does a man pay his taxes to the -government, except on that of contributing his proportion towards the -necessary cost of protecting the rights of all? Yet, when his own rights -are actually invaded, the government, which he contributes to support, -instead of fulfilling its implied contract, becomes his enemy, and not -only refuses to protect his rights, (except at his own cost,) but even -forbids him to do it himself. - -All free government is founded on the theory of voluntary association; -and on the theory that all the parties to it _voluntarily_ pay their -taxes for its support, on the condition of receiving protection in -return. But the idea that any _poor_ man would voluntarily pay taxes to -build up a government, which will neither protect his rights, (except at -a cost which he cannot meet,) nor suffer himself to protect them by such -means as may be in his power, is absurd. - -Under the prevailing system, a large portion of the lawsuits determined -in courts, are mere contests of purses rather than of rights. And a -jury, sworn to decide causes “according to the evidence” produced, are -quite likely, _for aught they themselves can know_, to be deciding -merely the comparative length of the parties’ purses, rather than the -intrinsic strength of their respective rights. Jurors ought to refuse to -decide a cause at all, except upon the assurance that all the evidence, -necessary to a full knowledge of the cause, is produced. This assurance -they can seldom have, unless the government itself produces all the -witnesses the parties desire. - -In criminal cases, the atrocity of accusing a man of crime, and then -condemning him unless he prove his innocence at his own charges, is so -evident that a jury could rarely, if ever, be justified in convicting a -man under such circumstances. - -But the free administration of justice is not only indispensable to the -maintenance of right between man and man; it would also promote -simplicity and stability in the laws. The mania for legislation would -be, in an important degree, restrained, if the government were compelled -to pay the expenses of all the suits that grew out of it. - -The free administration of justice would diminish and nearly extinguish -another great evil,—that of malicious _civil_ suits. It is an old -saying, that “_multi litigant in foro, non ut aliquid lucrentur, sed ut -vexant alios_.” (Many litigate in court, not that they may gain -anything, but that they may harass others.) Many men, from motives of -revenge and oppression, are willing to spend their own money in -prosecuting a groundless suit, if they can thereby compel their victims, -who are less able than themselves to bear the loss, to spend money in -the defence. Under the prevailing system, in which the parties pay the -expenses of their suits, nothing but money is necessary to enable any -malicious man to commence and prosecute a groundless suit, to the -terror, injury, and perhaps ruin, of another man. In this way, a court -of justice, into which none but a conscientious _plaintiff_ certainly -should ever be allowed to enter, becomes an arena into which any rich -and revengeful oppressor may drag any man poorer than himself, and -harass, terrify, and impoverish him, to almost any extent. It is a -scandal and an outrage, that government should suffer itself to be made -an instrument, in this way, for the gratification of private malice. We -might nearly as well have no courts of justice, as to throw them open, -as we do, for such flagitious uses. Yet the evil probably admits of no -remedy except a free administration of justice. Under a free system, -plaintiffs could rarely be influenced by motives of this kind; because -they could put their victim to little or no expense, _neither pending -the suit_, (which it is the object of the oppressor to do,) nor at its -termination. Besides, if the ancient common law practice should be -adopted, of amercing a party for troubling the courts with groundless -suits, the prosecutor himself would, in the end, be likely to be amerced -by the jury, in such a manner as to make courts of justice a very -unprofitable place for a man to go to seek revenge. - -In estimating the evils of this kind, resulting from the present system, -we are to consider that they are not, by any means, confined to the -actual suits in which this kind of oppression is practised; but we are -to include all those cases in which the fear of such oppression is used -as a weapon to compel men into a surrender of their rights. - -[^99]: _2 Sullivan Lectures_, 234-5. _3 Blackstone_, 274-5, 376. - Sullivan says that both plaintiffs and defendants were liable to - amercement. Blackstone speaks of plaintiffs being liable, without saying - whether defendants were so or not. What the rule really was I do not - know. There would seem to be some reason in allowing defendants to - defend themselves, _at their own charges_, without exposing themselves - to amercement in case of failure. - -[^100]: When any other witnesses than freeholders were required - in a civil suit, I am not aware of the manner in which their attendance - was procured; but it was doubtless done at the expense either of the - state or of the witnesses themselves. And it was doubtless the same in - criminal cases. - -[^101]: “All claims were established in the first stage by the - oath of the plaintiff, except when otherwise specially directed by the - law. The oath, by which any claim was supported, was called the - fore-oath, or ‘Præjuramentum,’ and it was the foundation of his suit. - One of the cases which did not require this initiatory confirmation, was - when cattle could be tracked into another man’s land, and then the - foot-mark stood for the fore-oath.”—_2 Palgrave’s Rise and Progress_, - &c., 114. - -[^102]: Among the necessary expenses of suits, should be reckoned - reasonable compensation to counsel, for they are nearly or quite as - important to the administration of justice, as are judges, jurors, or - witnesses; and the universal practice of employing them, both on the - part of governments and of private persons, shows that their importance - is generally understood. As a mere matter of economy, too, it would be - wise for the government to pay them, rather than they should not be - employed; because they collect and arrange the testimony and the law - beforehand, so as to be able to present the whole case to the court and - jury intelligibly, and in a short space of time. Whereas, if they were - not employed, the court and jury would be under the necessity either of - spending much more time than now in the investigation of causes, or of - despatching them in haste, and with little regard to justice. They would - be very likely to do the latter, thus defeating the whole object of the - people in establishing courts. - - To prevent the abuse of this right, it should perhaps be left - discretionary with the jury in each case to determine whether the - counsel should receive any pay—and, if any, how much—from the - government. diff --git a/edited/09.markdown b/edited/09.markdown deleted file mode 100644 index 43dfe31..0000000 --- a/edited/09.markdown +++ /dev/null @@ -1,429 +0,0 @@ -# THE CRIMINAL INTENT - - -It is a maxim of the common law that there can be no crime without a -criminal intent. And it is a perfectly clear principle, although one -which judges have in a great measure overthrown in practice, that -_jurors_ are to judge of the moral intent of an accused person, and hold -him guiltless, whatever his act, unless they find him to have acted with -a criminal intent; that is, with a design to do what he knew to be -criminal. - -This principle is clear, because the question for a jury to determine -is, whether the accused be _guilty_, or _not guilty_. _Guilt_ is a -personal quality of the actor,—not _necessarily_ involved in the act, -but depending also upon the intent or motive with which the act was -done. Consequently, the jury must find that he acted from a criminal -motive, before they can declare him _guilty_. - -There is no moral justice in, nor any political necessity for, punishing -a man for any act whatever that he may have committed, if he have done -it without any criminal intent. There can be no _moral justice_ in -punishing for such an act, because, there having been no _criminal -motive_, there can have been no other motive which justice can take -cognizance of, as demanding or justifying punishment. There can be no -_political necessity_ for punishing, to warn against similar acts in -future, because, if one man have injured another, however -unintentionally, he is liable, and justly liable, to a _civil_ suit for -damages; and in this suit he will be compelled to make compensation for -the injury, notwithstanding his innocence of any intention to injure. He -must bear the consequences of his own act, instead of throwing them upon -another, however innocent he may have been of any intention to do -wrong. And the damages he will have to pay will be a sufficient warning -to him not to do the like act again. - -If it be alleged that there are crimes against the public, (as treason, -for example, or any other resistance to government,) for which private -persons can recover no damages, and that there is a political necessity -for punishing for such offences, even though the party acted -conscientiously, the answer is,—the government must bear with all -resistance that is not so clearly wrong as to give evidence of criminal -intent. In other words, the government, in all its acts, must keep -itself so _clearly_ within the limits of justice, as that twelve men, -taken at random, will all agree that it is in the right, or it must -incur the risk of resistance, without any power to punish it. This is -the mode in which the trial by jury operates to prevent the government -from falling into the hands of a party, or a faction, and to keep it -within such limits as _all_, or substantially _all_, the people are -agreed that it may occupy. - -This necessity for a criminal intent, to justify conviction, is proved -by the issue which the jury are to try, and the verdict they are to -pronounce. The “issue” they are to try is, “_guilty_” or “_not guilty_.” -And those are the terms they are required to use in rendering their -verdicts. But it is a plain falsehood to say that a man is “_guilty_,” -unless he have done an act which he knew to be criminal. - -This necessity for a criminal intent—in other words, for _guilt_—as a -preliminary to conviction, makes it impossible that a man can be -rightfully convicted for an act that is intrinsically innocent, though -forbidden by the government; because guilt is an intrinsic quality of -actions and motives, and not one that can be imparted to them by -arbitrary legislation. All the efforts of the government, therefore, to -“_make offences by statute_,” out of acts that are not criminal by -nature, must necessarily be ineffectual, unless a jury will declare a -man “_guilty_” for an act that is really innocent. - -The corruption of judges, in their attempts to uphold the arbitrary -authority of the government, by procuring the conviction of individuals -for acts innocent in themselves, and forbidden only by some tyrannical -statute, and the commission of which therefore indicates no criminal -intent, is very apparent. - -To accomplish this object, they have in modern times held it to be -unnecessary that indictments should charge, as by the common law they -were required to do, that an act was done “_wickedly_,” “_feloniously_,” -“_with malice aforethought_,” or in any other manner that implied a -criminal intent, without which there can be no criminality; but that it -is sufficient to charge simply that it was done “_contrary to the form -of the statute in such case made and provided_.” This form of indictment -proceeds plainly upon the assumption that the government is absolute, -and that it has authority to prohibit any act it pleases, however -innocent in its nature the act may be. Judges have been driven to the -alternative of either sanctioning this new form of indictment, (which -they never had any constitutional right to sanction,) or of seeing the -authority of many of the statutes of the government fall to the ground; -because the acts forbidden by the statutes were so plainly innocent in -their nature, that even the government itself had not the face to allege -that the commission of them implied or indicated any criminal intent. - -To get rid of the necessity of showing a criminal intent, and thereby -further to enslave the people, by reducing them to the necessity of a -blind, unreasoning submission to the arbitrary will of the government, -and of a surrender of all right, on their own part, to judge what are -their constitutional and natural rights and liberties, courts have -invented another idea, which they have incorporated among the pretended -_maxims_, upon which they act in criminal trials, viz., that “_ignorance -of the law excuses no one_.” As if it were in the nature of things -possible that there could be an excuse more absolute and complete. What -else than ignorance of the law is it that excuses persons under the -years of discretion, and men of imbecile minds? What else than ignorance -of the law is it that excuses judges themselves for all their erroneous -decisions? Nothing. They are every day committing errors, which would be -crimes, but for their ignorance of the law. And yet these same judges, -who claim to be _learned_ in the law, and who yet could not hold their -offices for a day, but for the allowance which the law makes for their -ignorance, are continually asserting it to be a “maxim” that “ignorance -of the law excuses no one;” (by which, of course, they really mean that -it excuses no one but themselves; and especially that it excuses no -_unlearned_ man, who comes before them charged with crime.) - -This preposterous doctrine, that “ignorance of the law excuses no one,” -is asserted by courts because it is an indispensable one to the -maintenance of absolute power in the government. It is indispensable for -this purpose, because, if it be once admitted that the people _have_ any -rights and liberties which the government cannot lawfully take from -them, then the question arises in regard to every statute of the -government, whether it be law, or not; that is, whether it infringe, or -not, the rights and liberties of the people. Of this question every man -must of course judge according to the light in his own mind. And no man -can be convicted unless the jury find, not only that the statute is -_law_,—that it does _not_ infringe the rights and liberties of the -people,—but also that it was so clearly law, so clearly consistent with -the rights and liberties of the people, as that the individual himself, -who transgressed it, _knew it to be so_, and therefore had no moral -excuse for transgressing it. Governments see that if ignorance of the -law were allowed to excuse a man for any act whatever, it must excuse -him for transgressing all statutes whatsoever, which he himself thinks -inconsistent with his rights and liberties. But such a doctrine would of -course be inconsistent with the maintenance of arbitrary power by the -government; and hence governments will not allow the plea, although they -will not confess their true reasons for disallowing it. - -The only reasons, (if they deserve the name of reasons), that I ever -knew given for the doctrine that ignorance of the law excuses no one, -are these: - -> 1. “The reason for the maxim is that of necessity. It prevails, ‘not -> that all men know the law, but because it is an excuse which every -> man will make, and no man can tell how to confute him.’—_Selden_, -> (as quoted in the 2d edition of _Starkie on Slander_, Prelim. Disc., -> p. 140, note.)”—_Law Magazine_, (_London_,) vol. 27, p. 97. - -This reason impliedly admits that ignorance of the law is, -_intrinsically_, an ample and sufficient excuse for a crime; and that -the excuse ought to be allowed, if the fact of ignorance could but be -ascertained. But it asserts that this fact is incapable of being -ascertained, and that therefore there is a necessity for punishing the -ignorant and the knowing—that is, the innocent and the guilty—without -discrimination. - -This reason is worthy of the doctrine it is used to uphold; as if a plea -of ignorance, any more than any other plea, must necessarily be believed -simply because it is urged; and as if it were not a common and every-day -practice of courts and juries, in both civil and criminal cases, to -determine the mental capacity of individuals; as, for example, to -determine whether they are of sufficient mental capacity to make -reasonable contracts; whether they are lunatic; whether they are -_compotes mentis_, “of sound mind and memory,” &c. &c. And there is -obviously no more difficulty in a jury’s determining whether an accused -person knew the law in a criminal case, than there is in determining any -of these other questions that are continually determined in regard to a -man’s mental capacity. For the question to be settled by the jury is not -whether the accused person knew the particular _penalty_ attached to his -act, (for at common law no one knew what penalty a _jury_ would attach -to an offence,) but whether he knew that his act was _intrinsically -criminal_. If it were _intrinsically criminal_, it was criminal at -common law. If it was not intrinsically criminal, it was not criminal at -common law. (At least, such was the general principle of the common law. -There may have been exceptions in practice, owing to the fact that the -opinions of men, as to what was intrinsically criminal, may not have -been in all cases correct.) - -A jury, then, in judging whether an accused person knew his act to be -illegal, were bound first to use their own judgments, as to whether the -act were _intrinsically_ criminal. If their own judgments told them the -act was _intrinsically_ and _clearly_ criminal, they would naturally and -reasonably infer that the accused also understood that it was -intrinsically criminal, (and consequently illegal,) unless it should -appear that he was either below themselves in the scale of intellect, or -had had less opportunities of knowing what acts were criminal. In -short, they would judge, from any and every means they might have of -judging; and if they had any reasonable doubt that he knew his act to be -criminal in itself, they would be bound to acquit him. - -The second reason that has been offered for the doctrine that ignorance -of the law excuses no one, is this: - -> “Ignorance of the municipal law of the kingdom, or of the penalty -> thereby inflicted on offenders, doth not excuse any that is of the -> age of discretion and compos mentis, from the penalty of the breach -> of it; because every person, of the age of discretion and compos -> mentis, _is bound to know the law_, and presumed to do so. -> _Ignorantia eorum, quæ quis scire tenetur non excusat_.” (Ignorance -> of those things which every one is bound to know, does not -> excuse.)—_1 Hale’s Pleas of the Crown_, 42. _Doctor and Student, -> Dialog. 2_, ch. 46. _Law Magazine_, (_London_,) vol. 27, p. 97. - -The sum of this reason is, that ignorance of the law excuses no one, -(who is of the age of discretion and is compos mentis,) because every -such person “_is bound to know the law_.” But this is giving no reason -at all for the doctrine, since saying that a man “is bound to know the -law,” is only saying, _in another form_, that “ignorance of the law does -not excuse him.” There is no difference at all in the two ideas. To say, -therefore, that “ignorance of the law excuses no one, _because_ every -one is bound to know the law,” is only equivalent to saying that -“ignorance of the law excuses no one, _because_ ignorance of the law -excuses no one.” It is merely reässerting the doctrine, without giving -any reason at all. - -And yet these reasons, which are really no reasons at all, are the only -ones, so far as I know, that have ever been offered for this absurd and -brutal doctrine. - -The idea suggested, that “the age of discretion” determines the guilt of -a person,—that there is a particular age, prior to which _all_ persons -alike should be held incapable of knowing _any_ crime, and subsequent to -which _all_ persons alike should be held capable of knowing _all_ -crimes,—is another of this most ridiculous nest of ideas. All mankind -acquire their knowledge of crimes, as they do of other things, -_gradually_. Some they learn at an early age; others not till a later -one. One individual acquires a knowledge of crimes, as he does of -arithmetic, at an earlier age than others do. And to apply the same -presumption to all, on the ground of age alone, is not only gross -injustice, but gross folly. A universal presumption might, with nearly -or quite as much reason, be founded upon weight, or height, as upon -age.[^103] - -This doctrine, that “ignorance of the law excuses no one,” is constantly -repeated in the form that “every one is bound to know the law.” The -doctrine is true in civil matters, especially in contracts, so far as -this: that no man, who has the _ordinary_ capacity to make reasonable -contracts, can escape the consequences of his own agreement, on the -ground that he did not know the law applicable to it. When a man makes a -contract, he gives the other party rights; and he must of necessity -judge for himself, and take his own risk, as to what those rights -are,—otherwise the contract would not be binding, and men could not -make contracts that would convey rights to each other. Besides, the -capacity to make reasonable contracts, _implies and includes_ a -capacity to form a reasonable judgment as to the law applicable to them. -But in _criminal_ matters, where the question is one of punishment, or -not; where no second party has acquired any right to have the crime -punished, unless it were committed with criminal intent, (but only to -have it compensated for by damages in a civil suit;) and when the -criminal intent is the only moral justification for the punishment, the -principle does not apply, and a man is bound to know the law _only as -well as he reasonably may_. The criminal law requires neither -impossibilities nor extraordinaries of any one. It requires only -thoughtfulness and a good conscience. It requires only that a man fairly -and properly use the judgment he possesses, and the means he has of -learning his duty. It requires of him only the same care to know his -duty in regard to the law, that he is morally bound to use in other -matters of equal importance. _And this care it does require of him._ Any -ignorance of the law, therefore, that is unnecessary, or that arises -from indifference or disregard of one’s duty, is no excuse. An accused -person, therefore, may be rightfully held responsible for such a -knowledge of the law as is common to men in general, having no greater -natural capacities than himself, and no greater opportunities for -learning the law. And he can rightfully be held to no greater knowledge -of the law than this. To hold him responsible for a greater knowledge of -the law than is common to mankind, when other things are equal, would be -gross injustice and cruelty. The mass of mankind can give but little of -their attention to acquiring a knowledge of the law. Their other duties -in life forbid it. Of course, they cannot investigate abstruse or -difficult questions. All that can rightfully be required of each of -them, then, is that he exercise such a candid and conscientious judgment -as it is common for mankind generally to exercise in such matters. If he -have done this, it would be monstrous to punish him criminally for his -errors; errors not of conscience, but only of judgment. It would also be -contrary to the first principles of a free government (that is, a -government formed by voluntary association) to punish men in such cases, -because it would be absurd to suppose that any man would voluntarily -assist to establish or support a government that would punish himself -for acts which he himself did not know to be crimes. But a man may -reasonably unite with his fellow-men to maintain a government to punish -those acts which he himself considers criminal, and may reasonably -acquiesce in his own liability to be punished for such acts. As those -are the only grounds on which any one can be supposed to render any -voluntary support to a government, it follows that a government formed -by voluntary association, and of course having no powers except such as -_all_ the associates have consented that it may have, can have no power -to punish a man for acts which he did not himself know to be criminal. - -The safety of society, which is the only object of the criminal law, -requires only that those acts _which are understood by mankind at large -to be intrinsically criminal_, should be punished as crimes. The -remaining few (if there are any) may safely be left to go unpunished. -Nor does the safety of society require that any individuals, other than -those who have sufficient mental capacity to understand that their acts -are criminal, should be criminally punished. All others may safely be -left to their liability, under the _civil_ law, to compensate for their -unintentional wrongs. - -The only real object of this absurd and atrocious doctrine, that -“ignorance of the law (that is, of crime) excuses no one,” and that -“every one is bound to know the _criminal_ law,” (that is, bound to know -what is a crime,) is to maintain an entirely arbitrary authority on the -part of the government, and to deny to the people all right to judge for -themselves what their own rights and liberties are. In other words, the -whole object of the doctrine is to deny to the people themselves all -right to judge what statutes and other acts of the government are -consistent or inconsistent with their own rights and liberties; and thus -to reduce the people to the condition of mere slaves to a despotic -power, such as the people themselves would never have voluntarily -established, and the justice of whose laws the people themselves cannot -understand. - -Under the true trial by jury all tyranny of this kind would be -abolished. A jury would not only judge what acts were really criminal, -but they would judge of the mental capacity of an accused person, and of -his opportunities for understanding the true character of his conduct. -In short, they would judge of his moral intent from all the -circumstances of the case, and acquit him, if they had any reasonable -doubt that he knew that he was committing a crime.[^104] - -[^103]: This presumption, founded upon age alone, is as absurd in - civil matters as in criminal. What can be more entirely ludicrous than - the idea that all men (not manifestly imbecile) become mentally - competent to make all contracts whatsoever on the day they become - twenty-one years of age?—and that, previous to that day, no man becomes - competent to make any contract whatever, except for the present supply - of the most obvious wants of nature? In reason, a man’s _legal_ - competency to make _binding_ contracts, in any and every case whatever, - depends wholly upon his _mental_ capacity to make _reasonable_ contracts - in each particular case. It of course requires more capacity to make a - reasonable contract in some cases than in others. It requires, for - example, more capacity to make a reasonable contract in the purchase of - a large estate, than in the purchase of a pair of shoes. But the mental - capacity to make a reasonable contract, in any particular case, is, in - reason, the only legal criterion of the legal competency to make a - binding contract in that case. The age, whether more or less than - twenty-one years, is of no legal consequence whatever, except that it is - entitled to some consideration as _evidence of capacity_. - - It may be mentioned, in this connection, that the rules that prevail, - that every man is entitled to freedom from parental authority at - twenty-one years of age, and no one before that age, are of the same - class of absurdities with those that have been mentioned. The only - ground on which a parent is ever entitled to exercise authority over his - child, is that the child is incapable of taking reasonable care of - himself. The child would be entitled to his freedom from his birth, if - he were at that time capable of taking reasonable care of himself. Some - become capable of taking care of themselves at an earlier age than - others. And whenever any one becomes capable of taking reasonable care - of himself, and not until then, he is entitled to his freedom, be his - age more or less. - - These principles would prevail under the true trial by jury, the jury - being the judges of the capacity of every individual whose capacity - should be called in question. - -[^104]: In contrast to the doctrines of the text, it may be - proper to present more distinctly the doctrines that are maintained by - judges, and that prevail in courts of justice. - - Of course, no judge, either of the present day, or perhaps within the - last five hundred years, has admitted the right of a jury to judge of - the _justice_ of a law, or to hold any law invalid for its injustice. - Every judge asserts the power of the government to punish for acts that - are intrinsically innocent, and which therefore involve or evince no - criminal intent. To accommodate the administration of law to this - principle, all judges, so far as I am aware, hold it to be unnecessary - that an indictment should charge, or that a jury should find, that an - act was done with a criminal intent, except in those cases where the act - is _malum in se_,—criminal in itself. In all other cases, so far as I - am aware, they hold it sufficient that the indictment charge, and - consequently that the jury find, simply that the act was done “contrary - to the form of the statute in such case made and provided;” in other - words, contrary to the orders of the government. - - All these doctrines prevail universally among judges, and are, I think, - uniformly practised upon in courts of justice; and they plainly involve - the most absolute despotism on the part of the government. - - But there is still another doctrine that extensively, and perhaps most - generally, prevails in practice, although judges are not agreed in - regard to its soundness. It is this: that it is not even necessary that - the jury should see or know, _for themselves_, what the law _is_ that is - charged to have been violated; nor to see or know, _for themselves_, - that the act charged was in violation of any law whatever;—but that it - is sufficient that they be simply _told by the judge_ that any act - whatever, charged in an indictment, is in violation of law, and that - they are then bound blindly to receive the declaration as true, and - convict a man accordingly, if they find that he has done the act - charged. - - This doctrine is adopted by many among the most eminent judges, and the - reasons for it are thus given by Lord Mansfield: - - > “They (the jury) do not know, and are not presumed to know, the law. - > They are not sworn to decide the law;[^105] they are not required to - > do it.... The jury ought not to assume the jurisdiction of law. They - > do not know, and are not presumed to know, anything of the matter. - > They do not understand the language in which it is conceived, or the - > meaning of the terms. They have no rule to go by but their passions - > and wishes.”—_3 Term Rep._, 428, note. - - What is this but saying that the people, who are supposed to be - represented in juries, and who institute and support the government, (of - course for the protection of their own rights and liberties, _as they - understand them_, for plainly no other motive can be attributed to - them,) are really the slaves of a despotic power, whose arbitrary - commands even they are not supposed competent to understand, but for the - transgression of which they are nevertheless to be punished as - criminals? - - This is plainly the sum of the doctrine, because the jury are the peers - (equals) of the accused, and are therefore supposed to know the law as - well as he does, and as well as it is known by the people at large. If - _they_ (the jury) are not presumed to know the law, neither the accused - nor the people at large can be presumed to know it. Hence, it follows - that one principle of the _true_ trial by jury is, that no accused - person shall be held responsible for any other or greater knowledge of - the law than is common to his political equals, who will generally be - men of nearly similar condition in life. But the doctrine of Mansfield - is, that the body of the people, from whom jurors are taken, are - responsible to a law, _which it is agreed they cannot understand_. What - is this but despotism?—and not merely despotism, but insult and - oppression of the intensest kind? - - This doctrine of Mansfield is the doctrine of all who deny the right of - juries to judge of the law, although all may not choose to express it in - so blunt and unambiguous terms. But the doctrine evidently admits of no - other interpretation or defence. - -[^105]: This declaration of Mansfield, that juries in England - “are not sworn to decide the law” in criminal cases, is a plain - falsehood. They are sworn to try the whole case at issue between the - king and the prisoner, and that includes the law as well as the fact. - See _juror’s oath_, page 86. diff --git a/edited/10.markdown b/edited/10.markdown deleted file mode 100644 index 7e81c43..0000000 --- a/edited/10.markdown +++ /dev/null @@ -1,98 +0,0 @@ -# MORAL CONSIDERATIONS FOR JURORS - - -The trial by jury must, if possible, be construed to be such that a man -can rightfully sit in a jury, and unite with his fellows in giving -judgment. But no man can rightfully do this, unless he hold in his own -hand alone a veto upon any judgment or sentence whatever to be rendered -by the jury against a defendant, which veto he must be permitted to use -according to his own discretion and conscience, and not bound to use -according to the dictation of either legislatures or judges. - -The prevalent idea, that a juror may, at the mere dictation of a -legislature or a judge, and without the concurrence of his own -conscience or understanding, declare a man “_guilty_,” and thus in -effect license the government to punish him; and that the legislature or -the judge, and not himself, has in that case all the moral -responsibility for the correctness of the principles on which the -judgment was rendered, is one of the many gross impostures by which it -could hardly have been supposed that any sane man could ever have been -deluded, but which governments have nevertheless succeeded in inducing -the people at large to receive and act upon. - -As a moral proposition, it is perfectly self-evident that, unless juries -have all the legal rights that have been claimed for them in the -preceding chapters,—that is, the rights of judging what the law is, -whether the law be a just one, what evidence is admissible, what weight -the evidence is entitled to, whether an act were done with a criminal -intent, and the right also to _limit_ the sentence, free of all -dictation from any quarter,—they have no _moral_ right to sit in the -trial at all, and cannot do so without making themselves accomplices in -any injustice that they may have reason to believe may result from -their verdict. It is absurd to say that they have no moral -responsibility for the use that may be made of their verdict by the -government, when they have reason to suppose it will be used for -purposes of injustice. - -It is, for instance, manifestly absurd to say that jurors have no moral -responsibility for the enforcement of an unjust law, when they consent -to render a verdict of _guilty_ for the transgression of it; which -verdict they know, or have good reason to believe, will be used by the -government as a justification for inflicting a penalty. - -It is absurd, also, to say that jurors have no moral responsibility for -a punishment inflicted upon a man _against law_, when, at the dictation -of a judge as to what the law is, they have consented to render a -verdict against their own opinions of the law. - -It is absurd, too, to say that jurors have no moral responsibility for -the conviction and punishment of an innocent man, when they consent to -render a verdict against him on the strength of evidence, or laws of -evidence, dictated to them by the court, if any evidence or laws of -evidence have been excluded, which _they_ (the jurors) think ought to -have been admitted in his defence. - -It is absurd to say that jurors have no moral responsibility for -rendering a verdict of “_guilty_” against a man, for an act which he did -not know to be a crime, and in the commission of which, therefore, he -could have had no criminal intent, in obedience to the instructions of -courts that “ignorance of the law (that is, of crime) excuses no one.” - -It is absurd, also, to say that jurors have no moral responsibility for -any cruel or unreasonable _sentence_ that may be inflicted even upon a -_guilty_ man, when they consent to render a verdict which they have -reason to believe will be used by the government as a justification for -the infliction of such sentence. - -The consequence is, that jurors must have the whole case in their hands, -and judge of law, evidence, and sentence, or they incur the moral -responsibility of accomplices in any injustice which they have reason to -believe will be done by the government on the authority of their -verdict. - -The same principles apply to civil cases as to criminal. If a jury -consent, at the dictation of the court, as to either law or evidence, to -render a verdict, on the strength of which they have reason to believe -that a man’s property will be taken from him and given to another, -against their own notions of justice, they make themselves morally -responsible for the wrong. - -Every man, therefore, ought to refuse to sit in a jury, and to take the -oath of a juror, unless the form of the oath be such as to allow him to -use his own judgment, on every part of the case, free of all dictation -whatsoever, and to hold in his own hand a veto upon any verdict that can -be rendered against a defendant, and any sentence that can be inflicted -upon him, even if he be guilty. - -Of course, no man can rightfully take an oath as juror, to try a case -“according to law,” (if by law be meant anything other than his own -ideas of justice,) nor “according to the law and the evidence, _as they -shall be given him_.” Nor can he rightfully take an oath even to try a -case “_according to the evidence_,” because in all cases he may have -good reason to believe that a party has been unable to produce all the -evidence legitimately entitled to be received. The only oath which it -would seem that a man can rightfully take as juror, in either a civil or -criminal case, is, that he “will try the case _according to his -conscience_.” Of course, the form may admit of variation, but this -should be the substance. Such, we have seen, were the ancient common law -oaths. diff --git a/edited/11.markdown b/edited/11.markdown deleted file mode 100644 index 3770bf9..0000000 --- a/edited/11.markdown +++ /dev/null @@ -1,627 +0,0 @@ -# AUTHORITY OF MAGNA CARTA - - -Probably no political compact between king and people was ever entered -into in a manner to settle more authoritatively the fundamental law of a -nation, than was Magna Carta. Probably no people were ever more united -and resolute in demanding from their king a definite and unambiguous -acknowledgment of their rights and liberties, than were the English at -that time. Probably no king was ever more completely stripped of all -power to maintain his throne, and at the same time resist the demands of -his people, than was John on the 15th day of June, 1215. Probably no -king ever consented, more deliberately or explicitly, to hold his throne -subject to specific and enumerated limitations upon his power, than did -John when he put his seal to the Great Charter of the Liberties of -England. And if any political compact between king and people was ever -valid to settle the liberties of the people, or to limit the power of -the crown, that compact is now to be found in Magna Carta. If, -therefore, the constitutional authority of Magna Carta had rested solely -upon the compact of John with his people, that authority would have been -entitled to stand forever as the supreme law of the land, unless revoked -by the will of the people themselves. - -But the authority of Magna Carta does not rest alone upon the compact -with _John_. When, in the next year, (1216,) his son, Henry III., came -to the throne, the charter was ratified by him, and again in 1217, and -again in 1225, in substantially the same form, and especially without -allowing any new powers, legislative, judicial, or executive, to the -king or his judges, and without detracting in the least from the powers -of the jury. And from the latter date to this, the charter has remained -unchanged. - -In the course of two hundred years the charter was confirmed by Henry -and his successors more than thirty times. And although they were guilty -of numerous and almost continual breaches of it, and were constantly -seeking to evade it, yet such were the spirit, vigilance and courage of -the nation, that the kings held their thrones only on the condition of -their renewed and solemn promises of observance. And it was not until -1429, (as will be more fully shown hereafter,) when a truce between -themselves, and a formal combination against the mass of the people, had -been entered into, by the king, the nobility, and the “_forty shilling -freeholders_,” (a class whom Mackintosh designates as “_a few -freeholders then accounted wealthy_,”[^106]) by the exclusion of all -others than such freeholders from all voice in the election of knights -to represent the counties in the House of Commons, that a repetition of -these confirmations of Magna Carta ceased to be demanded and -obtained.[^107] - -The terms and the formalities of some of these “confirmations” make them -worthy of insertion at length. - -Hume thus describes one which took place in the 38th year of Henry III. -(1253): - -> “But as they (the barons) had experienced his (the king’s) frequent -> breach of promise, they required that he should ratify the Great -> Charter in a manner still more authentic and solemn than any which he -> had hitherto employed. All the prelates and abbots were assembled. -> They held burning tapers in their hands. The Great Charter was read -> before them. They denounced the sentence of excommunication against -> every one who should thenceforth violate that fundamental law. They -> threw their tapers on the ground, and exclaimed, _May the soul of -> every one who incurs this sentence so stink and corrupt in hell!_ The -> king bore a part in this ceremony, and subjoined, ‘So help me God! I -> will keep all these articles inviolate, as I am a man, as I am a -> Christian, as I am a knight, and as I am a king crowned and -> anointed.’”—_Hume_, ch. 12. See also _Blackstone’s Introd. to the -> Charters. Black. Law Tracts_, Oxford ed., p. 332. _Mackintosh’s Hist. -> of Eng._, ch. 3. _Lardner’s Cab. Cyc._, vol. 45, p. 233-4. - -The following is the form of “the sentence of excommunication” referred -to by Hume: - -> “_The Sentence of Curse, Given by the Bishops, against the Breakers -> of the Charters._ - -> “The year of our Lord a thousand two hundred and fifty-three, the -> third day of May, in the great Hall of the King at Westminster, _in -> the presence, and by the assent, of the Lord Henry, by the Grace of -> God King of England_, and the Lords Richard, Earl of Cornwall, his -> brother, Roger (Bigot) Earl of Norfolk and Suffolk, marshal of -> England, Humphrey, Earl of Hereford, Henry, Earl of Oxford, John, -> Earl of Warwick, and other estates of the Realm of England: We, -> Boniface, by the mercy of God Archbishop of Canterbury, Primate of -> all England, F. of London, H. of Ely, S. of Worcester, E. of Lincoln, -> W. of Norwich, P. of Hereford, W. of Salisbury, W. of Durham, R. of -> Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of Saint -> David’s, Bishops, apparelled in Pontificals, with tapers burning, -> against the breakers of the Church’s Liberties, and of the Liberties -> or free customs of the Realm of England, and especially of those -> which are contained in the Charter of the Common Liberties of the -> Realm, and the Charter of the Forest, have solemnly denounced the -> sentence of Excommunication in this form. By the authority of -> Almighty God, the Father, the Son, and the Holy Ghost, and of the -> glorious Mother of God, and perpetual Virgin Mary, of the blessed -> Apostles Peter and Paul, and of all apostles, of the blessed Thomas, -> Archbishop and Martyr, and of all martyrs, of blessed Edward of -> England, and of all Confessors and virgins, and of all the saints of -> heaven: We excommunicate, accurse, and from the thresholds -> (liminibus) of our Holy Mother the Church, We sequester, all those -> that hereafter willingly and maliciously deprive or spoil the Church -> of her right: And all those that by any craft or wiliness do violate, -> break, diminish, or change the Church’s Liberties, or the ancient -> approved customs of the Realm, and especially the Liberties and free -> Customs contained in the Charters of the Common Liberties, and of the -> Forest, conceded by our Lord the King, to Archbishops, Bishops, and -> other Prelates of England; and likewise to the Earls, Barons, -> Knights, and other Freeholders of the Realm: And all that secretly, -> or openly, by deed, word, or counsel, _do make statutes, or observe -> them being made_, and that bring in Customs, or keep them when they -> be brought in, against the said Liberties, or any of them, the -> Writers and Counsellors of said statutes, and the Executors of them, -> and all those that shall presume to judge according to them. All and -> every which persons before mentioned, that wittingly shall commit -> anything of the premises, let them well know that they incur the -> aforesaid sentence, _ipso facto_, (i.e., upon the deed being done.) -> And those that ignorantly do so, and be admonished, except they -> reform themselves within fifteen days after the time of the -> admonition, and make full satisfaction for that they have done, at -> the will of the ordinary, shall be from that time forth included in -> the same sentence. And with the same sentence we burden all those -> that presume to perturb the peace of our sovereign Lord the King, and -> of the Realm. To the perpetual memory of which thing, We, the -> aforesaid Prelates, have put our seals to these presents.”—_Statutes -> of the Realm_, vol. 1, p. 6. _Ruffhead’s Statutes_, vol. 1, p. 20. - -One of the Confirmations of the Charters, by Edward I., was by statute, -in the 25th year of his reign, (1297,) in the following terms. The -statute is usually entitled “_Confirmatio Cartarum_,” (Confirmation of -the Charters.) - -> _Ch. 1._ “Edward, by the Grace of God, King of England, Lord of -> Ireland, and Duke of Guyan, To all those that these presents shall -> hear or see, Greeting. Know ye, that We, to the honor of God, and of -> Holy Church, and to the profit of our Realm, have granted, for us and -> our heirs, that the Charter of Liberties, and the Charter of the -> Forest, which were made by common assent of all the Realm, in the -> time of King Henry our Father, shall be kept in every point without -> breach. And we will that the same Charters shall be sent under our -> seal, as well to our justices of the Forest, as to others, and to all -> Sheriffs of shires, and to all our other officers, and to all our -> cities throughout the Realm, together with our writs, in the which it -> shall be contained, that they cause the aforesaid Charters to be -> published, and to declare to the people that We have confirmed them -> at all points; and to our Justices, Sheriffs, Mayors, and other -> ministers, which under us have the Laws of our Land to guide, that -> they allow the same Charters, in all their points, in pleas before -> them, and in judgment; that is, to wit, the Great Charter as the -> Common Law, and the Charter of the Forest for the wealth of our -> Realm. - -> _Ch. 2._ “And we will that if any judgment be given from henceforth -> contrary to the points of the charters aforesaid by the justices, or -> by any others our ministers that hold plea before them, against the -> points of the Charters, it shall be undone and holden for naught. - -> _Ch. 3._ “And we will, that the same Charters shall be sent, under -> our seal, to Cathedral Churches throughout our Realm, there to -> remain, and shall be read before the people two times in the year. - -> _Ch. 4._ “And that all Archbishops and Bishops shall pronounce the -> sentence of excommunication against all those that by word, deed, or -> counsel, do contrary to the foresaid charters, or that in any point -> break or undo them. And that the said Curses be twice a year -> denounced and published by the prelates aforesaid. And if the same -> prelates, or any of them, be remiss in the denunciation of the said -> sentences, the Archbishops of Canterbury and York, for the time -> being, shall compel and distrain them to make the denunciation in the -> form aforesaid.”—_St. 25 Edward I._, (1297.) _Statutes of the -> Realm_, vol. 1, p. 123. - -It is unnecessary to repeat the terms of the various confirmations, most -of which were less formal than those that have been given, though of -course equally authoritative. Most of them are brief, and in the form of -a simple statute, or promise, to the effect that “The Great Charter, and -the Charter of the Forest, shall be firmly kept and maintained in all -points.” They are to be found printed with the other statutes of the -realm. One of them, after having “again granted, renewed and confirmed” -the charters, requires as follows: - -> “That the Charters be delivered to every sheriff of England under the -> king’s seal, to be read four times in the year before the people in -> the full county,” (that is, at the county court,) “that is, to wit, -> the next county (court) after the feast of Saint Michael, and the -> next county (court) after Christmas, and at the next county (court) -> after Easter, and at the next county (court) after the feast of Saint -> John.”—_28 Edward I._, ch. 1, (1300.) - -> Lingard says, “The Charter was ratified four times by Henry III., -> twice by Edward I., fifteen times by Edward III., seven times by -> Richard II., six times by Henry IV., and once by Henry V.;” making -> thirty-five times in all.—_3 Lingard_, 50, note, Philad. ed. - -Coke says Magna Carta was confirmed thirty-two times.—Preface_ to_ 2 -_Inst_., p. 6. - -> Lingard calls these “thirty-five successive ratifications” of the -> charter, “a sufficient proof how much its provisions were abhorred -> by the sovereign, and how highly they were prized by the nation.”—_3 -> Lingard_, 50. - -> Mackintosh says, “For almost five centuries (that is, until 1688) it -> (Magna Carta) was appealed to as the decisive authority on behalf of -> the people, though commonly so far only as the necessities of each -> case demanded.”—_Mackintosh’s Hist. of Eng._ ch. 3. _45 Lardner’s -> Cab. Cyc._, 221. - -Coke, who has labored so hard to overthrow the most vital principles of -Magna Carta, and who, therefore, ought to be considered good authority -when he speaks in its favor,[^108] says: - -> “It is called Magna Carta, not that it is great in quantity, for -> there be many voluminous charters commonly passed, specially in these -> later times, longer than this is; nor comparatively in respect that -> it is greater than _Charta de Foresta_, but in respect of the great -> importance and weightiness of the matter, as hereafter shall appear; -> and likewise for the same cause _Charta de Foresta_; and both of them -> are called _Magnæ Chartæ Libertatum Angliæ_, (The Great Charters of -> the Liberties of England.) ... - -> “And it is also called _Charta Libertatum regni_, (Charter of the -> Liberties of the kingdom;) and upon great reason it is so called of -> the effect, _quia liberos facit_, (because it makes men free.) -> Sometime for the same cause (it is called) _communis libertas_, -> (common liberty,) and _le chartre des franchises_, (the charter of -> franchises.) ... - -> “It was for the most part declaratory of the principal grounds of the -> fundamental laws of England, and for the residue it is additional to -> supply some defects of the common law.... - -> “Also, by the said act of 25 Edward I., (called _Confirmatio -> Chartarum_,) it is adjudged in parliament that the Great Charter and -> the Charter of the Forest shall be taken as the common law.... - -> “They (Magna Carta and Carta de Foresta) were, for the most part, but -> declarations of the ancient common laws of England, to the -> observation and keeping whereof, the king was bound and sworn. - -> “After the making of Magna Charta, and Charta de Foresta, divers -> learned men in the laws, that I may use the words of the record, kept -> schools of the law in the city of London, and taught such as resorted -> to them the laws of the realm, taking their foundation of Magna -> Charta and Charta de Foresta. - -> “And the said two charters have been confirmed, established, and -> commanded to be put in execution by thirty-two several acts of -> parliament in all. - -> “This appeareth partly by that which hath been said, for that it hath -> so often been confirmed by the wise providence of so many acts of -> parliament. - -> “And albeit judgments in the king’s courts are of high regard in law, -> and _judicia_ (judgments) are accounted as _jurisdicta_, (the speech -> of the law itself,) yet it is provided by act of parliament, that if -> any judgment be given contrary to any of the points of the Great -> Charter and Charta de Foresta, by the justices, or by any other of -> the king’s ministers, &c., it shall be undone, and holden for naught. - -> “And that both the said charters shall be sent under the great seal -> to all cathedral churches throughout the realm, there to remain, and -> shall be read to the people twice every year. - -> “The highest and most binding laws are the statutes which are -> established by parliament; and by authority of that highest court it -> is enacted (only to show their tender care of Magna Carta and Carta -> de Foresta) that if any statute be made contrary to the Great -> Charter, or the Charter of the Forest, that shall be holden for none; -> by which words all former statutes made against either of those -> charters are now repealed; and the nobles and great officers were to -> be sworn to the observation of Magna Charta and Charta de Foresta. - -> “_Magna fuit quondam magnæ reverentia chartæ._” (Great was formerly -> the reverence for Magna Carta.)—_Coke’s Proem to 2 Inst._, p. 1 to -> 7. - -Coke also says, “All pretence of prerogative against Magna Charta is -taken away.”—_2 Inst._, 36. - -He also says, “That after this parliament (_52 Henry_ III., in 1267) -neither Magna Carta nor Carta de Foresta was ever attempted to be -impugned or questioned.”—_2 Inst._, 102.[^109] - -To give all the evidence of the authority of Magna Carta, it would be -necessary to give the constitutional history of England since the year -1215. This history would show that Magna Carta, although continually -violated and evaded, was still acknowledged as law by the government, -and was held up by the people as the great standard and proof of their -rights and liberties. It would show also that the judicial tribunals, -_whenever it suited their purposes to do so_, were in the habit of -referring to Magna Carta as authority, in the same manner, and with the -same real or pretended veneration, with which American courts now refer -to the constitution of the United States, or the constitutions of the -states. And, what is equally to the point, it would show that these same -tribunals, the mere tools of kings and parliaments, would resort to the -same artifices of assumption, _precedent_, construction, and false -interpretation, to evade the requirements of Magna Carta, and to -emasculate it of all its power for the preservation of liberty, that are -resorted to by American courts to accomplish the same work on our -American constitutions. - -I take it for granted, therefore, that if the authority of Magna Carta -had rested simply upon its character as a _compact_ between the king and -the people, it would have been forever binding upon the king, (that is, -upon the government, for the king was the government,) in his -legislative, judicial, and executive character; and that there was no -_constitutional_ possibility of his escaping from its restraints, unless -the people themselves should freely discharge him from them. - -But the authority of Magna Carta does not rest, either wholly or mainly, -upon its character as a compact. For centuries before the charter was -granted, its main principles constituted “the Law of the Land,”—the -fundamental and constitutional law of the realm, which the kings were -sworn to maintain. And the principal benefit of the charter was, that it -contained a _written_ description and acknowledgment, by the king -himself, of what the constitutional law of the kingdom was, which his -coronation oath bound him to observe. Previous to Magna Carta, this -constitutional law rested mainly in precedents, customs, and the -memories of the people. And if the king could but make one innovation -upon this law, without arousing resistance, and being compelled to -retreat from his usurpation, he would cite that innovation as a -precedent for another act of the same kind; next, assert a custom; and, -finally, raise a controversy as to what the Law of the Land really was. -The great object of the barons and people, in demanding from the king a -written description and acknowledgment of the Law of the Land, was to -put an end to all disputes of this kind, and to put it out of the power -of the king to plead any misunderstanding of the constitutional law of -the kingdom. And the charter, no doubt, accomplished very much in this -way. After Magna Carta, it required much more audacity, cunning, or -strength, on the part of the king, than it had before, to invade the -people’s liberties with impunity. Still, Magna Carta, like all other -written constitutions, proved inadequate to the full accomplishment of -its purpose; for when did a parchment ever have power adequately to -restrain a government, that had either cunning to evade its -requirements, or strength to overcome those who attempted its defence? -The work of usurpation, therefore, though seriously checked, still went -on, to a great extent, after Magna Carta. Innovations upon the Law of -the Land are still made by the government. One innovation was cited as a -precedent; precedents made customs; and customs became laws, so far as -practice was concerned; until the government, composed of the king, the -high functionaries of the church, the nobility, a House of Commons -representing the “forty shilling freeholders,” and a dependent and -servile judiciary, all acting in conspiracy against the mass of the -people, became practically absolute, as it is at this day. - -As proof that Magna Carta embraced little else than what was previously -recognized as the common law, or Law of the Land, I repeat some -authorities that have been already cited. - -> Crabbe says, “It is admitted on all hands that it (Magna Carta) -> contains nothing but what was confirmatory of the common law and the -> ancient usages of the realm; and is, properly speaking, only an -> enlargement of the charter of Henry I. and his -> successors.”—_Crabbe’s Hist. of the Eng. Law_, p. 127. - -> Blackstone says, “It is agreed by all our historians that the Great -> Charter of King John was, for the most part, compiled from the -> ancient customs of the realm, or the laws of Edward the Confessor; by -> which they mean the old common law which was established under our -> Saxon princes.”—_Blackstone’s Introd. to the Charters._ See -> _Blackstone’s Law Tracts_, Oxford ed., p. 289. - -> Coke says, “The common law is the most general and ancient law of -> the realm.... The common law appeareth in the statute of _Magna -> Carta_, and other ancient statutes, (which for the most part are -> affirmations of the common law,) in the original writs, in judicial -> records, and in our books of terms and years.”—_1 Inst._, 115 b. - -> Coke also says, “It (Magna Carta) was for the most part declaratory -> of the principal grounds of the fundamental laws of England, and for -> the residue it was additional to supply some defects of the common -> law.... They (Magna Carta and Carta de Foresta) were, for the most -> part, but declarations of the ancient common laws of England, _to the -> observation and keeping whereof the king was bound and -> sworn_.”—_Preface to 2 Inst._, p. 3 and 5. - -> Hume says, “We may now, from the tenor of this charter, (Magna -> Carta,) conjecture what those laws were of King Edward, (the -> Confessor,) which the English nation during so many generations still -> desired, with such an obstinate perseverance, to have recalled and -> established. They were chiefly these latter articles of Magna Carta; -> and the barons who, at the beginning of these commotions, demanded -> the revival of the Saxon laws, undoubtedly thought that they had -> sufficiently satisfied the people, by procuring them this concession, -> which comprehended the principal objects to which they had so long -> aspired.”—_Hume_, ch. 11. - -Edward the First confessed that the Great Charter was substantially -identical with the common law, as far as it went, when he commanded his -justices to allow “the Great Charter as the Common Law,” “in pleas -before them, and in judgment,” as has been already cited in this -chapter.—_25 Edward_ I., ch. 1, (1297.) - -In conclusion of this chapter, it may be safely asserted that the -veneration, attachment, and pride, which the English nation, for more -than six centuries, have felt towards Magna Carta, are in their nature -among the most irrefragable of all proofs that it was the fundamental -law of the land, and constitutionally binding upon the government; for, -otherwise, it would have been, in their eyes, an unimportant and -worthless thing. What those sentiments were I will use the words of -others to describe,—the words, too, of men, who, like all modern -authors who have written on the same topic, had utterly inadequate ideas -of the true character of the instrument on which they lavished their -eulogiums. - -Hume, speaking of the Great Charter and the Charter of the Forest, as -they were confirmed by Henry III., in 1217, says: - -> “Thus these famous charters were brought nearly to the shape in which -> they have ever since stood; and they were, during many generations, -> the peculiar favorites of the English nation, and esteemed the most -> sacred rampart to national liberty and independence. As they secured -> the rights of all orders of men, they were anxiously defended by all, -> and became the basis, in a manner, of the English monarchy, and a -> kind of original contract, which both limited the authority of the -> king and ensured the conditional allegiance of his subjects. Though -> often violated, they were still claimed by the nobility and people; -> and, as no precedents were supposed valid that infringed them, they -> rather acquired than lost authority, from the frequent attempts made -> against them in several ages, by regal and arbitrary power.”—_Hume_, -> ch. 12. - -> Mackintosh says, “It was understood by the simplest of the unlettered -> age for whom it was intended. It was remembered by them.... For -> almost five centuries it was appealed to as the decisive authority on -> behalf of the people.... To have produced it, to have preserved it, -> to have matured it, constitute the immortal claim of England on the -> esteem of mankind. Her Bacons and Shakspeares, her Miltons and -> Newtons, with all the truth which they have revealed, and all the -> generous virtues which they have inspired, are of inferior value when -> compared with the subjection of men and their rulers to the -> principles of justice; if, indeed, it be not more true that these -> mighty spirits could not have been formed except under equal laws, -> nor roused to full activity without the influence of that spirit -> which the Great Charter breathed over their -> forefathers.”—_Mackintosh’s Hist. of Eng._, ch. 3.[^110] - -Of the Great Charter, the trial by jury is the vital part, and the only -part that places the liberties of the people in their own keeping. Of -this Blackstone says: - -> “The trial by jury, or the country, _per patriam_, is also that trial -> by the peers of every Englishman, which, as the grand bulwark of his -> liberties, is secured to him by the Great Charter; _nullus liber homo -> capiatur, vel imprisonetur, aut exuletur, aut aliquo modo destruatur, -> nisi per legale judicium parium suorum, vel per legem terrae...._ - -> The liberties of England cannot but subsist so long as this palladium -> remains sacred and inviolate, not only from all open attacks, which -> none will be so hardy as to make, but also from all secret -> machinations which may sap and undermine it.”[^111] - -> “The trial by jury ever has been, and I trust ever will be, looked -> upon as the glory of the English law.... It is the most transcendent -> privilege which any subject can enjoy or wish for, that he cannot be -> affected in his property, his liberty, or his person, but by the -> unanimous consent of twelve of his neighbors and equals.”[^112] - -> Hume calls the trial by jury “An institution admirable in itself, and -> the best calculated for the preservation of liberty and the -> administration of justice, that ever was devised by the wit of -> man.”[^113] - -An old book, called “English Liberties,” says: - -> “English Parliaments have all along been most zealous for preserving -> this great Jewel of Liberty, trials by juries having no less than -> fifty-eight several times, since the Norman Conquest, been -> established and confirmed by the legislative power, no one privilege -> besides having been ever so often remembered in parliament.”[^114] - -[^106]: _Mackintosh’s Hist. of Eng._, ch. 3. _45 Lardner’s Cab. - Cyc._, 354. - -[^107]: “_Forty shilling freeholders_” were those “people - dwelling and resident in the same counties, whereof every one of them - shall have free land or tenement to the value of forty shillings by the - year at the least above all charges.” By statute _8 Henry_ 6, ch. 7, - (1429,) these freeholders only were allowed to vote for members of - Parliament from the _counties_. - -[^108]: He probably speaks in its favor only to blind the eyes of - the people to the frauds he has attempted upon its true meaning. - -[^109]: It will be noticed that Coke calls these confirmations of - the charter “acts of parliament,” instead of acts of the king alone. - This needs explanation. - - It was one of Coke’s ridiculous pretences, that laws anciently enacted - by the king, at the request, or with the consent, or by the advice, of - his parliament, was “an act of parliament,” instead of the act of the - king. And in the extracts cited, he carries this idea so far as to - pretend that the various confirmations of the Great Charter were “acts - of parliament,” instead of the acts of the kings. He might as well have - pretended that the original grant of the Charter was an “act of - parliament;” because it was not only granted at the request, and with - the consent, and by the advice, but on the compulsion even, of those who - commonly constituted his parliaments. Yet this did not make the grant of - the charter “an act of parliament.” It was simply an act of the king. - - The object of Coke, in this pretence, was to furnish some color for the - palpable falsehood that the legislative authority, which parliament was - trying to assume in his own day, and which it finally succeeded in - obtaining, had a precedent in the ancient constitution of the kingdom. - - There would be as much reason in saying that, because the ancient kings - were in the habit of passing laws in special answer to the _petitions_ - of their subjects, therefore those _petitioners_ were a part of the - legislative power of the kingdom. - - One great objection to this argument of Coke, for the legislative - authority of the ancient parliaments, is that a very large—probably - much the larger—number of legislative acts were done _without_ the - advice, consent, request, or even presence, of a parliament. Not only - were many formal statutes passed without any mention of the consent or - advice of parliament, but a simple order of the king in council, or a - simple proclamation, writ, or letter under seal, issued by his command, - had the same force as what Coke calls “an act of parliament.” And this - practice continued, to a considerable extent at least, down to Coke’s - own time. - - The kings were always in the habit of consulting their parliaments, more - or less, in regard to matters of legislation,—not because their consent - was constitutionally necessary, but in order to make influence in favor - of their laws, and thus induce the people to observe them, and the - juries to enforce them. - - The general duties of the ancient parliaments were not legislative, but - judicial, as will be shown more fully hereafter. The _people_ were not - represented in the parliaments at the time of Magna Carta, but only the - archbishops, bishops, earls, barons, and knights; so that little or - nothing would have been gained for liberty by Coke’s idea that - parliament had a legislative power. He would only have substituted an - aristocracy for a king. Even after the Commons were represented in - parliament, they for some centuries appeared only as _petitioners_, - except in the matter of taxation, when their _consent_ was asked. And - almost the only source of their influence on legislation was this: that - they would sometimes refuse their consent to the taxation, unless the - king would pass such laws as they petitioned for; or, as would seem to - have been much more frequently the case, unless he would abolish such - laws and practices as they remonstrated against. - - The _influence_ or power of parliament, and especially of the Commons, - in the general legislation of the country, was a thing of slow growth, - having its origin in a device of the king to get money contrary to law, - (as will be seen in the next volume,) and not at all a part of the - constitution of the kingdom, nor having its foundation in the consent of - the people. The power, _as at present exercised_, was not fully - established until 1688, (near five hundred years after Magna Carta,) - when the House of Commons (falsely so called) had acquired such - influence as the representative, _not of the people, but of the wealth, - of the nation_, that they compelled the king to discard the oath fixed - by the constitution of the kingdom; (which oath has been already given - in a former chapter,(page 101) and was, in substance, to preserve and - execute the Common Law, the Law of the Land,—or, in the words of the - oath, “_the just laws and customs which the common people had chosen_;”) - and to swear that he would “govern the people of this kingdom of - England, and the dominions thereto belonging, _according to the statutes - in parliament agreed on_, and the laws and customs of the same.”[^115] - - The passage and enforcement of this statute, and the assumption of this - oath by the king, were plain violations of the English constitution, - inasmuch as they abolished, so far as such an oath could abolish, the - legislative power of the king, and also “those just laws and customs - which the common people (through their juries) had chosen,” and - substituted the will of parliament in their stead. - - Coke was a great advocate for the legislative power of parliament, as a - means of restraining the power of the king. As he denied all power to - _juries_ to decide upon the obligation of laws, and as he held that the - legislative power was “_so transcendent and absolute as (that) it cannot - be confined, either for causes or persons, within any bounds_,”[^116] he - was perhaps honest in holding that it was safer to trust this terrific - power in the hands of parliament, than in the hands of the king. His - error consisted in holding that either the king or parliament had any - such power, or that they had any power at all to pass laws that should - be binding upon a jury. - - These declarations of Coke, that the charter was confirmed by thirty-two - “acts of parliament,” have a mischievous bearing in another respect. - They tend to weaken the authority of the charter, by conveying the - impression that the charter itself might be _abolished_ by “act of - parliament.” Coke himself admits that it could not be revoked or - rescinded by the _king_; for he says, “All pretence of prerogative - against Magna Carta is taken away.” (_2 Inst._, 36.) - - He knew perfectly well, and the whole English nation knew, that the - _king_ could not lawfully infringe Magna Carta. Magna Carta, therefore, - made it impossible that absolute power could ever be practically - established in England, _in the hands of the king_. Hence, as Coke was - an advocate for absolute power,—that is, for a legislative power “so - transcendent and absolute as (that) it cannot be confined, either for - causes or persons, within any bounds,”—there was no alternative for him - but to vest this absolute power in parliament. Had he not vested it in - parliament, he would have been obliged to abjure it altogether, and to - confess that the people, _through their juries_, had the right to judge - of the obligation of all legislation whatsoever; in other words, that - they had the right to confine the government within the limits of “those - just laws and customs which the common people (acting as jurors) had - chosen.” True to his instincts, as a judge, and as a tyrant, he assumed - that this absolute power was vested in the hands of parliament. - - But the truth was that, as by the English constitution parliament had no - authority at all for _general_ legislation, it could no more confirm, - than it could abolish, Magna Carta. - - These thirty-two confirmations of Magna Carta, which Coke speaks of as - “acts of parliament,” were merely acts of the king. The parliaments, - indeed, by refusing to grant him money, except on that condition, and - otherwise, had contributed to oblige him to make the confirmations; just - as they had helped to oblige him by arms to grant the charter in the - first place. But the confirmations themselves were nevertheless - constitutionally, as well as formally, the acts of the king alone. - -[^110]: Under the head of “_John._” - -[^111]: _4 Blackstone_, 349-50. - -[^112]: _3 Blackstone_, 379. - -[^113]: _Hume_, ch. 2. - -[^114]: Page 203, 5th edition, 1721. - -[^115]: St. 1 _William and Mary_, ch. 6, (1688.) - -[^116]: 4 _Inst._, 36. diff --git a/edited/12.markdown b/edited/12.markdown deleted file mode 100644 index 8a51f08..0000000 --- a/edited/12.markdown +++ /dev/null @@ -1,568 +0,0 @@ -# LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY - - -The principal objection, that will be made to the doctrine of this -essay, is, that under it, a jury would paralyze the power of the -majority, and veto all legislation that was not in accordance with the -will of the whole, or nearly the whole, people. - -The answer to this objection is, that the limitation, which would be -thus imposed upon the legislative power, (whether that power be vested -in the majority, or minority, of the people,) is the crowning merit of -the trial by jury. It has other merits; but, though important in -themselves, they are utterly insignificant and worthless in comparison -with this. - -It is this power of vetoing all partial and oppressive legislation, and -of restricting the government to the maintenance of such laws as the -_whole_, or substantially the whole, people _are agreed in_, that makes -the trial by jury “the palladium of liberty.” Without this power it -would never have deserved that name. - -The will, or the pretended will, of the majority, is the last lurking -place of tyranny at the present day. The dogma, that certain individuals -and families have a divine appointment to govern the rest of mankind, is -fast giving place to the one that the larger number have a right to -govern the smaller; a dogma, which may, or may not, be less oppressive -in its practical operation, but which certainly is no less false or -tyrannical in principle, than the one it is so rapidly supplanting. -Obviously there is nothing in the nature of majorities, that insures -justice at their hands. They have the same passions as minorities, and -they have no qualities whatever that should be expected to prevent them -from practising the same tyranny as minorities, if they think it will -be for their interest to do so. - -There is no particle of truth in the notion that the majority have a -_right_ to rule, or to exercise arbitrary power over, the minority, -simply because the former are more numerous than the latter. Two men -have no more natural right to rule one, than one has to rule two. Any -single man, or any body of men, many or few, have a natural right to -maintain justice for themselves, and for any others who may need their -assistance, against the injustice of any and all other men, without -regard to their numbers; and majorities have no right to do any more -than this. The relative numbers of the opposing parties have nothing to -do with the question of right. And no more tyrannical principle was ever -avowed, than that the will of the majority ought to have the force of -law, without regard to its justice; or, what is the same thing, that the -will of the majority ought always to be presumed to be in accordance -with justice. Such a doctrine is only another form of the doctrine that -might makes right. - -When _two_ men meet _one_ upon the highway, or in the wilderness, have -they a right to dispose of his life, liberty, or property at their -pleasure, simply because they are the more numerous party? Or is he -bound to submit to lose his life, liberty, or property, if they demand -it, merely because he is the less numerous party? Or, because they are -more numerous than he, is he bound to presume that they are governed -only by superior wisdom, and the principles of justice, and by no -selfish passion that can lead them to do him a wrong? Yet this is the -principle, which it is claimed should govern men in all their civil -relations to each other. Mankind fall in company with each other on the -highway or in the wilderness of life, and it is claimed that the more -numerous party, simply by virtue of their superior numbers, have the -right arbitrarily to dispose of the life, liberty, and property of the -minority; and that the minority are bound, by reason of their inferior -numbers, to practise abject submission, and consent to hold their -natural rights,—any, all, or none, as the case may be,—at the mere -will and pleasure of the majority; as if all a man’s natural rights -expired, or were suspended by the operation of a paramount law, the -moment he came into the presence of superior numbers. - -If such be the true nature of the relations men hold to each other in -this world, it puts an end to all such things as crimes, unless they be -perpetrated upon those who are equal or superior, in number, to the -actors. All acts committed against persons _inferior_ in number to the -aggressors, become but the exercise of rightful authority. And -consistency with their own principles requires that all governments, -founded on the will of the majority, should recognize this plea as a -sufficient justification for all crimes whatsoever. - -If it be said that the majority should be allowed to rule, not because -they are stronger than the minority, but because their superior numbers -furnish a _probability_ that they are in the right; one answer is, that -the lives, liberties, and properties of men are too valuable to them, -and the natural presumptions are too strong in their favor, to justify -the destruction of them by their fellow-men on a mere balancing of -probabilities, _or on any ground whatever short of certainty beyond a -reasonable doubt_. This last is the moral rule universally recognized to -be binding upon single individuals. And in the forum of conscience the -same rule is equally binding upon governments, for governments are mere -associations of individuals. This is the rule on which the trial by jury -is based. And it is plainly the only rule that ought to induce a man to -submit his rights to the adjudication of his fellow-men, or dissuade him -from a forcible defence of them. - -Another answer is, that if two opposing parties could be supposed to -have no personal interests or passions involved, to warp their -judgments, or corrupt their motives, the fact that one of the parties -was more numerous than the other, (a fact that leaves the comparative -intellectual competency of the two parties entirely out of -consideration,) might, perhaps, furnish a slight, but at best only a -very slight, probability that such party was on the side of justice. But -when it is considered that the parties are liable to differ in their -intellectual capacities, and that one, or the other, or both, are -undoubtedly under the influence of such passions as rivalry, hatred, -avarice, and ambition,—passions that are nearly certain to pervert -their judgments, and very likely to corrupt their motives,—all -probabilities founded upon a mere numerical majority, in one party, or -the other, vanish at once; and the decision of the majority becomes, to -all practical purposes, a mere decision of chance. And to dispose of -men’s properties, liberties, and lives, by the mere process of -enumerating such parties, is not only as palpable gambling as was ever -practised, but it is also the most atrocious that was ever practised, -except in matters of government. And where government is instituted on -this principle, (as in the United States, for example,) the nation is at -once converted into one great gambling establishment; where all the -rights of men are the stakes; a few bold bad men throw the dice—(dice -loaded with all the hopes, fears, interests, and passions which rage in -the breasts of ambitious and desperate men,)—and all the people, from -the interests they have depending, become enlisted, excited, agitated, -and generally corrupted, by the hazards of the game. - -The trial by jury disavows the majority principle altogether; and -proceeds upon the ground that every man should be presumed to be -entitled to life, liberty, and such property as he has in his -possession; and that the government should lay its hand upon none of -them, (except for the purpose of bringing them before a tribunal for -adjudication,) unless it be first ascertained, _beyond a reasonable -doubt_, in every individual case, that justice requires it. - -To ascertain whether there be such reasonable doubt, it takes twelve men -_by lot_ from the whole body of mature men. If any of these twelve are -proved to be under the influence of any _special_ interest or passion, -that may either pervert their judgments, or corrupt their motives, they -are set aside as unsuitable for the performance of a duty requiring such -absolute impartiality and integrity; and others substituted in their -stead. When the utmost practicable impartiality is attained on the part -of the whole twelve, they are sworn to the observance of justice; and -their unanimous concurrence is then held to be necessary to remove that -reasonable doubt, which, unremoved, would forbid the government to lay -its hand on its victim. - -Such is the caution which the trial by jury both practises and -inculcates, against the violation of justice, on the part of the -government, towards the humblest individual, in the smallest matter -affecting his civil rights, his property, liberty, or life. And such is -the contrast, which the trial by jury presents, to that gambler’s and -robber’s rule, that the majority have a right, by virtue of their -superior numbers, and without regard to justice, to dispose at pleasure -of the property and persons of all bodies of men less numerous than -themselves. - -The difference, in short, between the two systems, is this. The trial by -jury protects person and property, inviolate to their possessors, from -the hand of the law, unless _justice, beyond a reasonable doubt_, -require them to be taken. The majority principle takes person and -property from their possessors, at the mere arbitrary will of a -majority, who are liable and likely to be influenced, in taking them, by -motives of oppression, avarice, and ambition. - -If the relative numbers of opposing parties afforded sufficient evidence -of the comparative justice of their claims, the government should carry -the principle into its courts of justice; and instead of referring -controversies to impartial and disinterested men,—to judges and jurors, -sworn to do justice, and bound patiently to hear and weigh all the -evidence and arguments that can be offered on either side,—it should -simply _count_ the plaintiffs and defendants in each case, (where there -were more than one of either,) and then give the case to the majority; -after ample opportunity had been given to the plaintiffs and defendants -to reason with, flatter, cheat, threaten, and bribe each other, by way -of inducing them to change sides. Such a process would be just as -rational in courts of justice, as in halls of legislation; for it is of -no importance to a man, who has his rights taken from him, whether it be -done by a legislative enactment, or a judicial decision. - -In legislation, the people are all arranged as plaintiffs and defendants -in their own causes; (those who are in favor of a particular law, -standing as plaintiffs, and those who are opposed to the same law, -standing as defendants); and to allow these causes to be decided by -majorities, is plainly as absurd as it would be to allow judicial -decisions to be determined by the relative number of plaintiffs and -defendants. - -If this mode of decision were introduced into courts of justice, we -should see a parallel, and only a parallel, to that system of -legislation which we witness daily. We should see large bodies of men -conspiring to bring perfectly groundless suits, against other bodies of -men, for large sums of money, and to carry them by sheer force of -numbers; just as we now continually see large bodies of men conspiring -to carry, by mere force of numbers, some scheme of legislation that -will, directly or indirectly, take money out of other men’s pockets, and -put it into their own. And we should also see distinct bodies of men, -parties in separate suits, combining and agreeing all to appear and be -counted as plaintiffs or defendants in each other’s suits, for the -purpose of ekeing out the necessary majority; just as we now see -distinct bodies of men, interested in separate schemes of ambition or -plunder, conspiring to carry through a batch of legislative enactments, -that shall accomplish their several purposes. - -This system of combination and conspiracy would go on, until at length -whole states and a whole nation would become divided into two great -litigating parties, each party composed of several smaller bodies, -having their separate suits, but all confederating for the purpose of -making up the necessary majority in each case. The individuals composing -each of these two great parties, would at length become so accustomed to -acting together, and so well acquainted with each others’ schemes, and -so mutually dependent upon each others’ fidelity for success, that they -would become organized as permanent associations; bound together by that -kind of honor that prevails among thieves; and pledged by all their -interests, sympathies, and animosities, to mutual fidelity, and to -unceasing hostility to their opponents; and exerting all their arts and -all their resources of threats, injuries, promises, and bribes, to drive -or seduce from the other party enough to enable their own to retain or -acquire such a majority as would be necessary to gain their own suits, -and defeat the suits of their opponents. All the wealth and talent of -the country would become enlisted in the service of these rival -associations; and both would at length become so compact, so well -organized, so powerful, and yet always so much in need of recruits, -that a private person would be nearly or quite unable to obtain justice -in the most paltry suit with his neighbor, except on the condition of -joining one of these great litigating associations, who would agree to -carry through his cause, on condition of his assisting them to carry -through all the others, good and bad, which they had already undertaken. -If he refused this, they would threaten to make a similar offer to his -antagonist, and suffer their whole numbers to be counted against him. - -Now this picture is no caricature, but a true and honest likeness. And -such a system of administering justice, would be no more false, absurd, -or atrocious, than that system of working by majorities, which seeks to -accomplish, by legislation, the same ends which, in the case supposed, -would be accomplished by judicial decisions. - -Again, the doctrine that the minority ought to submit to the will of the -majority, proceeds, not upon the principle that government is formed by -voluntary association, and for an _agreed purpose_, on the part of all -who contribute to its support, but upon the presumption that all -government must be practically a state of war and plunder between -opposing parties; and that, in order to save blood, and prevent mutual -extermination, the parties come to an agreement that they will count -their respective numbers periodically, and the one party shall then be -permitted quietly to rule and plunder, (restrained only by their own -discretion,) and the other submit quietly to be ruled and plundered, -until the time of the next enumeration. - -Such an agreement may possibly be wiser than unceasing and deadly -conflict; it nevertheless partakes too much of the ludicrous to deserve -to be seriously considered as an expedient for the maintenance of civil -society. It would certainly seem that mankind might agree upon a -cessation of hostilities, upon more rational and equitable terms than -that of unconditional submission on the part of the less numerous body. -Unconditional submission is usually the last act of one who confesses -himself subdued and enslaved. How any one ever came to imagine that -condition to be one of freedom, has never been explained. And as for the -system being adapted to the maintenance of justice among men, it is a -mystery that any human mind could ever have been visited with an -insanity wild enough to originate the idea. - -If it be said that other corporations, than governments, surrender their -affairs into the hands of the majority, the answer is, that they allow -majorities to determine only trifling matters, that are in their nature -mere questions of discretion, and where there is no natural presumption -of justice or right on one side rather than the other. They _never_ -surrender to the majority the power to dispose of, or, what is -practically the same thing, to _determine_, the _rights_ of any -individual member. The _rights_ of every member are determined by the -written compact, to which all the members have voluntarily agreed. - -For example. A banking corporation allows a majority to determine such -questions of discretion as whether the note of A or of B shall be -discounted; whether notes shall be discounted on one, two, or six days -in the week; how many hours in a day their banking-house shall be kept -open; how many clerks shall be employed; what salaries they shall -receive, and such like matters, which are in their nature mere subjects -of discretion, and where there are no natural presumptions of justice or -right in favor of one course over the other. But no banking corporation -allows a majority, or any other number of its members less than the -whole, to divert the funds of the corporation to any other purpose than -the one to which _every member_ of the corporation has legally agreed -that they may be devoted; nor to take the stock of one member and give -it to another; nor to distribute the dividends among the stockholders -otherwise than to each one the proportion which he has agreed to accept, -and all the others have agreed that he shall receive. Nor does any -banking corporation allow a majority to impose taxes upon the members -for the payment of the corporate expenses, except in such proportions as -_every member_ has consented that they may be imposed. All these -questions, involving the _rights_ of the members as against each other, -are fixed by the articles of the association,—that is, by the agreement -to which _every member_ has personally assented. - -What is also specially to be noticed, and what constitutes a vital -difference between the banking corporation and the political -corporation, or government, is, that in case of controversy among the -members of the banking corporation, as to the _rights_ of any member, -the question is determined, not by any number, either majority, or -minority, of the corporation itself, _but by persons out of the -corporation_; by twelve men acting as jurors, or by other tribunals of -justice, of which no member of the corporation is allowed to be a part. -But in the case of the political corporation, controversies among the -parties to it, as to the rights of individual members, must of necessity -be settled by members of the corporation itself, because there are no -persons out of the corporation to whom the question can be referred. - -Since, then, all questions as to the _rights_ of the members of the -political corporation, must be determined by members of the corporation -itself, the trial by jury says that no man’s _rights_,—neither his -right to his life, his liberty, nor his property,—shall be determined -by any such standard as the mere will and pleasure of majorities; but -only by the unanimous verdict of a tribunal fairly representing the -whole people,—that is, a tribunal of twelve men, taken, at random from -the whole body, and ascertained to be as impartial as the nature of the -case will admit, _and sworn to the observance of justice_. Such is the -difference in the two kinds of corporations; and the custom of managing -by majorities the mere discretionary matters of business corporations, -(the majority having no power to determine the _rights_ of any member,) -furnishes no analogy to the practice, adopted by political corporations, -of disposing of all the _rights_ of their members by the arbitrary will -of majorities. - -But further. The doctrine that the majority have a _right_ to rule, -proceeds upon the principle that minorities have no _rights_ in the -government; for certainly the minority cannot be said to have any -_rights_ in a government, so long as the majority alone determine what -their rights shall be. They hold everything, or nothing, as the case may -be, at the mere will of the majority. - -It is indispensable to a “_free_ government,” (in the political sense of -that term,) that the minority, the weaker party, have a veto upon the -acts of the majority. Political liberty is liberty for the _weaker -party_ in a nation. It is only the weaker party that lose their -liberties, when a government becomes oppressive. The stronger party, in -all governments, are free by virtue of their superior strength. They -never oppress themselves. - -Legislation is the work of this stronger party; and if, in addition to -the sole power of legislating, they have the sole power of determining -what legislation shall be enforced, they have all power in their hands, -and the weaker party are the subjects of an absolute government. - -Unless the weaker party have a veto, either upon the making, or the -enforcement of laws, they have no power whatever in the government, and -can of course have no liberties except such as the stronger party, in -their arbitrary discretion, see fit to permit them to enjoy. - -In England and the United States, the trial by jury is the only -institution that gives the weaker party any veto upon the power of the -stronger. Consequently it is the only institution, that gives them any -effective voice in the government, or any guaranty against oppression. - -Suffrage, however free, is of no avail for this purpose; because the -suffrage of the minority is overborne by the suffrage of the majority, -and is thus rendered powerless for purposes of legislation. The -responsibility of officers can be made of no avail, because they are -responsible only to the majority. The minority, therefore, are wholly -without rights in the government, wholly at the mercy of the majority, -unless, through the trial by jury, they have a veto upon such -legislation as they think unjust. - -Government is established for the protection of the weak against the -strong. This is the principal, if not the sole, motive for the -establishment of all legitimate government. Laws, that are sufficient -for the protection of the weaker party, are of course sufficient for the -protection of the stronger party; because the strong can certainly need -no more protection than the weak. It is, therefore, right that the -weaker party should be represented in the tribunal which is finally to -determine what legislation may be enforced; and that no legislation -shall be enforced against their consent. They being presumed to be -competent judges of what kind of legislation makes for their safety, and -what for their injury, it must be presumed that any legislation, which -_they_ object to enforcing, tends to their oppression, and not to their -security. - -There is still another reason why the weaker party, or the minority, -should have a veto upon all legislation which they disapprove. _That -reason is, that that is the only means by which the government can be -kept within the limits of the contract, compact, or constitution, by -which the whole people agree to establish government._ If the majority -were allowed to interpret the compact for themselves, and enforce it -according to their own interpretation, they would, of course, make it -authorize them to do whatever they wish to do. - -The theory of free government is that it is formed by the voluntary -contract of the people individually with each other. This is the theory, -(although it is not, as it ought to be, the fact,) in all the -governments in the United States, as also in the government of England. -The theory assumes that each man, who is a party to the government, and -contributes to its support, has individually and freely consented to it. -Otherwise the government would have no right to tax him for its -support,—for taxation without consent is robbery. This theory, then, -necessarily supposes that this government, which is formed by the free -consent of all, has no powers except such as _all_ the parties to it -have individually agreed that it shall have; and especially that it has -no power to pass any _laws_, except such as _all_ the parties have -agreed that it may pass. - -This theory supposes that there may be certain laws that will be -beneficial to _all_,—so beneficial that _all_ consent to be taxed for -their maintenance. For the maintenance of these specific laws, in which -all are interested, all associate. And they associate for the -maintenance of those laws _only_, in which _all_ are interested. It -would be absurd to suppose that all would associate, and consent to be -taxed, for purposes which were beneficial only to a part; and especially -for purposes that were injurious to any. A government of the whole, -therefore, can have no powers except such as _all_ the parties consent -that it may have. It can do nothing except what _all_ have consented -that it may do. And if any portion of the people,—no matter how large -their number, if it be less than the whole,—desire a government for any -purposes other than those that are common to all, and desired by all, -they must form a separate association for those purposes. They have no -right,—by perverting this government of the whole, to the -accomplishment of purposes desired only by a part,—to compel any one to -contribute to purposes that are either useless or injurious to himself. - -Such being the principles on which the government is formed, the -question arises, how shall this government, when formed, be kept within -the limits of the contract by which it was established? How shall this -government, instituted by the whole people, agreed to by the whole -people, supported by the contributions of the whole people, be confined -to the accomplishment of those purposes alone, which the whole people -desire? How shall it be preserved from degenerating into a mere -government for the benefit of a part only of those who established, and -who support it? How shall it be prevented from even injuring a part of -its own members, for the aggrandizement of the rest? Its laws must be, -(or at least now are,) passed, and most of its other acts performed, by -mere agents,—agents chosen by a part of the people, and not by the -whole. How can these agents be restrained from seeking their own -interests, and the interests of those who elected them, at the expense -of the rights of the remainder of the people, by the passage and -enforcement of laws that shall be partial, unequal, and unjust in their -operation? That is the great question. And the trial by jury answers it. -And how does the trial by jury answer it? It answers it, as has already -been shown throughout this volume, by saying that these mere agents and -attorneys, who are chosen by a part only of the people, and are liable -to be influenced by partial and unequal purposes, shall not have -unlimited authority in the enactment and enforcement of laws; that they -shall not exercise _all_ the functions of government. It says that they -shall never exercise that ultimate power of compelling obedience to the -laws by punishing for disobedience, or of executing the laws against the -person or property of any man, without first getting the consent of the -people, through a tribunal that may fairly be presumed to represent the -whole, or substantially the whole, people. It says that if the power to -make laws, and the power also to enforce them, were committed to these -agents, they would have all power,—would be absolute masters of the -people, and could deprive them of their rights at pleasure. It says, -therefore, that the people themselves will hold a veto upon the -enforcement of any and every law, which these agents may enact, and that -whenever the occasion arises for them to give or withhold their -consent,—inasmuch as the whole people cannot assemble, or devote the -time and attention necessary to the investigation of each case,—twelve -of their number shall be taken by lot, or otherwise at random, from the -whole body; that they shall not be chosen by majorities, (the same -majorities that elected the agents who enacted the laws to be put in -issue,) nor by any interested or suspected party; that they shall not be -appointed by, or be in any way dependent upon, those who enacted the -law; that their opinions, whether for or against the law that is in -issue, shall not be inquired of beforehand; and that if these twelve men -give their consent to the enforcement of the law, their consent shall -stand for the consent of the whole. - -This is the mode, which the trial by jury provides, for keeping the -government within the limits designed by the whole people, who have -associated for its establishment. And it is the only mode, provided -either by the English or American constitutions, for the accomplishment -of that object. - -But it will, perhaps, be said that if the minority can defeat the will -of the majority, then the minority _rule_ the majority. But this is not -true in any unjust sense. The minority enact no laws of their own. They -simply refuse their assent to such laws of the majority as they do not -approve. The minority assume no authority over the majority; they simply -defend themselves. They do not interfere with the right of the majority -to seek their own happiness in their own way, so long as they (the -majority) do not interfere with the minority. They claim simply not to -be oppressed, and not to be compelled to assist in doing anything which -they do not approve. They say to the majority, “We will unite with you, -if you desire it, for the accomplishment of all those purposes, in -which we have a common interest with you. You can certainly expect us to -do nothing more. If you do not choose to associate with us on those -terms, there must be two separate associations. You must associate for -the accomplishment of your purposes; we for the accomplishment of ours.” - -In this case, the minority assume no authority over the majority; they -simply refuse to surrender their own liberties into the hands of the -majority. They propose a union; but decline submission. The majority are -still at liberty to refuse the connection, and to seek their own -happiness in their own way, except that they cannot be gratified in -their desire to become absolute masters of the minority. - -But, it may be asked, how can the minority be trusted to enforce even -such legislation as is equal and just? The answer is, that they are as -reliable for that purpose as are the majority; they are as much presumed -to have associated, and are as likely to have associated, for that -object, as are the majority; and they have as much interest in such -legislation as have the majority. They have even more interest in it; -for, being the weaker party, they must rely on it for their -security,—having no other security on which they can rely. Hence their -consent to the establishment of government, and to the _taxation_ -required for its support, is _presumed_, (although it ought not to be -presumed,) without any express consent being given. This presumption of -their consent to be taxed for the maintenance of laws, would be absurd, -if they could not themselves be trusted to act in good faith in -enforcing those laws. And hence they cannot be presumed to have -consented to be taxed for the maintenance of any laws, except such as -they are themselves ready to aid in enforcing. It is therefore unjust to -tax them, unless they are eligible to seats in a jury, with power to -judge of the justice of the laws. Taxing them for the support of the -laws, on the assumption that they are in favor of the laws, and at the -same time refusing them the right, as jurors, to judge of the justice of -the laws, on the assumption that they are opposed to the laws, are flat -contradictions. - -But, it will be asked, what motive have the majority, when they have -all power in their own hands, to submit their will to the veto of the -minority? - -One answer is, that they have the motive of justice. It would be -_unjust_ to compel the minority to contribute, by taxation, to the -support of any laws which they did not approve. - -Another answer is, that if the stronger party wish to use their power -only for purposes of justice, they have no occasion to fear the veto of -the weaker party; for the latter have as strong motives for the -maintenance of _just_ government, as have the former. - -Another answer is, that if the stronger party use their power -_unjustly_, they will hold it by an uncertain tenure, especially in a -community where knowledge is diffused; for knowledge will enable the -weaker party to make itself in time the stronger party. It also enables -the weaker party, even while it remains the weaker party, perpetually to -annoy, alarm, and injure their oppressors. Unjust power,—or rather -power that is _grossly_ unjust, and that is known to be so by the -minority,—can be sustained only at the expense of standing armies, and -all the other machinery of force; for the oppressed party are always -ready to risk their lives for purposes of vengeance, and the acquisition -of their rights, whenever there is any tolerable chance of success. -Peace, safety, and quiet for all, can be enjoyed only under laws that -obtain the consent of all. Hence tyrants frequently yield to the demands -of justice from those weaker than themselves, as a means of buying peace -and safety. - -Still another answer is, that those who are in the majority on one law, -will be in the minority on another. All, therefore, need the benefit of -the veto, at some time or other, to protect themselves from injustice. - -That the limits, within which legislation would, by this process, be -confined, would be exceedingly narrow, in comparison with those it at -present occupies, there can be no doubt. All monopolies, all special -privileges, all sumptuary laws, all restraints upon any traffic, -bargain, or contract, that was naturally lawful,[^117] all restraints -upon men’s natural rights, the whole catalogue of _mala prohibita_, and -all taxation to which the taxed parties had not individually, severally, -and freely consented, would be at an end; because all such legislation -implies a violation of the rights of a greater or less minority. This -minority would disregard, trample upon, or resist, the execution of such -legislation, and then throw themselves upon a jury of the whole people -for justification and protection. In this way all legislation would be -nullified, except the legislation of that general nature which -impartially protected the rights, and subserved the interests, of all. -The only legislation that could be sustained, would probably be such as -tended directly to the maintenance of justice and liberty; such, for -example, as should contribute to the enforcement of contracts, the -protection of property, and the prevention and punishment of acts -intrinsically criminal. In short, government in practice would be -brought to the necessity of a strict adherence to natural law, and -natural justice, instead of being, as it now is, a great battle, in -which avarice and ambition are constantly fighting for and obtaining -advantages over the natural rights of mankind. - -[^117]: Such as restraints upon banking, upon the rates of - interest, upon traffic with foreigners, &c., &c. diff --git a/edited/appendix.markdown b/edited/appendix.markdown deleted file mode 100644 index 49beb3b..0000000 --- a/edited/appendix.markdown +++ /dev/null @@ -1,125 +0,0 @@ -\appendix -# TAXATION - -It was a principle of the Common Law, as it is of the law of nature, and -of common sense, that no man can be taxed without his personal consent. -The Common Law knew nothing of that system, which now prevails in -England, of _assuming_ a man’s own consent to be taxed, because some -pretended representative, whom he never authorized to act for him, has -taken it upon himself to consent that he may be taxed. That is one of -the many frauds on the Common Law, and the English constitution, which -have been introduced since Magna Carta. Having finally established -itself in England, it has been stupidly and servilely copied and -submitted to in the United States. - -If the trial by jury were reëstablished, the Common Law principle of -taxation would be reëstablished with it; for it is not to be supposed -that juries would enforce a tax upon an individual which he had never -agreed to pay. Taxation without consent is as plainly robbery, when -enforced against one man, as when enforced against millions; and it is -not to be imagined that juries could be blind to so self-evident a -principle. Taking a man’s money without his consent, is also as much -robbery, when it is done by millions of men, acting in concert, and -calling themselves a government, as when it is done by a single -individual, acting on his own responsibility, and calling himself a -highwayman. Neither the numbers engaged in the act, nor the different -characters they assume as a cover for the act, alter the nature of the -act itself. - -If the government can take a man’s money without his consent, there is -no limit to the additional tyranny it may practise upon him; for, with -his money, it can hire soldiers to stand over him, keep him in -subjection, plunder him at discretion, and kill him if he resists. And -governments always will do this, as they everywhere and always have done -it, except where the Common Law principle has been established. It is -therefore a first principle, a very _sine qua non_ of political freedom, -that a man can be taxed only by his personal consent. And the -establishment of this principle, with _trial by jury_, insures freedom -of course; because: 1. No man would pay his money unless he had first -contracted for such a government as he was willing to support; and, 2. -Unless the government then kept itself within the terms of its contract, -juries would not enforce the payment of the tax. Besides, the agreement -to be taxed would probably be entered into but for a year at a time. If, -in that year, the government proved itself either inefficient or -tyrannical, to any serious degree, the contract would not be renewed. -The dissatisfied parties, if sufficiently numerous for a new -organization, would form themselves into a separate association for -mutual protection. If not sufficiently numerous for that purpose, those -who were conscientious would forego all governmental protection, rather -than contribute to the support of a government which they deemed unjust. - -All legitimate government is a mutual insurance company, voluntarily -agreed upon by the parties to it, for the protection of their rights -against wrong-doers. In its voluntary character it is precisely similar -to an association for mutual protection against fire or shipwreck. -Before a man will join an association for these latter purposes, and pay -the premium for being insured, he will, if he be a man of sense, look at -the articles of the association; see what the company promises to do; -what it is likely to do; and what are the rates of insurance. If he be -satisfied on all these points, he will become a member, pay his premium -for a year, and then hold the company to its contract. If the conduct of -the company prove unsatisfactory, he will let his policy expire at the -end of the year for which he has paid; will decline to pay any further -premiums, and either seek insurance elsewhere, or take his own risk -without any insurance. And as men act in the insurance of their ships -and dwellings, they would act in the insurance of their properties, -liberties and lives, in the political association, or government. - -The political insurance company, or government, have no more right, in -nature or reason, to _assume_ a man’s consent to be protected by them, -and to be taxed for that protection, when he has given no actual -consent, than a fire or marine insurance company have to assume a man’s -consent to be protected by them, and to pay the premium, when his actual -consent has never been given. To take a man’s property without his -consent is robbery; and to assume his consent, where no actual consent -is given, makes the taking none the less robbery. If it did, the -highwayman has the same right to assume a man’s consent to part with his -purse, that any other man, or body of men, can have. And his assumption -would afford as much moral justification for his robbery as does a like -assumption, on the part of the government, for taking a man’s property -without his consent. The government’s pretence of protecting him, as an -equivalent for the taxation, affords no justification. It is for himself -to decide whether he desires such protection as the government offers -him. If he do not desire it, or do not bargain for it, the government -has no more right than any other insurance company to impose it upon -him, or make him pay for it. - -Trial by the country, and no taxation without consent, were the two -pillars of English liberty, (when England had any liberty,) and the -first principles of the Common Law. They mutually sustain each other; -and neither can stand without the other. Without both, no people have -any guaranty for their freedom; with both, no people can be otherwise -than free.[^118] - -By what force, fraud, and conspiracy, on the part of kings, nobles, and -“a few wealthy freeholders,” these pillars have been prostrated in -England, it is designed to show more fully in the next volume, if it -should be necessary. - -[^118]: Trial by the country, and no taxation without consent, - mutually sustain each other, and can be sustained only by each other, - for these reasons: 1. Juries would refuse to enforce a tax against a man - who had never agreed to pay it. They would also protect men in forcibly - resisting the collection of taxes to which they had never consented. - Otherwise the jurors would authorize the government to tax themselves - without their consent,—a thing which no jury would be likely to do. In - these two ways, then, trial by the country would sustain the principle - of no taxation without consent. 2. On the other hand, the principle of - no taxation without consent would sustain the trial by the country, - because men in general would not consent to be taxed for the support of - a government under which trial by the country was not secured. Thus - these two principles mutually sustain each other. - - But, if either of these principles were broken down, the other would - fall with it, and for these reasons: 1. If trial by the country were - broken down, the principle of no taxation without consent would fall - with it, because the government would then be _able_ to tax the people - without their consent, inasmuch as the legal tribunals would be mere - tools of the government, and would enforce such taxation, and punish men - for resisting such taxation, as the government ordered. 2. On the other - hand, if the principle of no taxation without consent were broken down, - trial by the country would fall with it, because the government, if it - could tax people without their consent, would, of course, take enough of - their money to enable it to employ all the force necessary for - sustaining its own tribunals, (in the place of juries,) and carrying - their decrees into execution. diff --git a/edited/note.markdown b/edited/note.markdown deleted file mode 100644 index f5ef74d..0000000 --- a/edited/note.markdown +++ /dev/null @@ -1,19 +0,0 @@ -\chapter*{NOTE} - -This volume, it is presumed by the author, gives what will generally be -considered satisfactory evidence,—though not all the evidence,—of what -the Common Law trial by jury really is. In a future volume, if it should -be called for, it is designed to corroborate the grounds taken in this; -give a concise view of the English constitution; show the -unconstitutional character of the existing government in England, and -the unconstitutional means by which the trial by jury has been broken -down in practice; prove that, neither in England nor the United States, -have legislatures ever been invested by the people with any authority to -impair the powers, change the oaths, or (with few exceptions) abridge -the jurisdiction, of juries, or select jurors on any other than Common -Law principles; and, consequently, that, in both countries, legislation -is still constitutionally subordinate to the discretion and consciences -of Common Law juries, in all cases, both civil and criminal, in which -juries sit. The same volume will probably also discuss several political -and legal questions, which will naturally assume importance if the trial -by jury should be reëstablished. \ No newline at end of file