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# THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS
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\section{}
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For more than six hundred years—that is, since Magna Carta, in
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1215—there has been no clearer principle of English or American
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constitutional law, than that, in criminal cases, it is not only the
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right and duty of juries to judge what are the facts, what is the law,
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and what was the moral intent of the accused; _but that it is also their
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right, and their primary and paramount duty, to judge of the justice of
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the law, and to hold all laws invalid, that are, in their opinion,
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unjust or oppressive, and all persons guiltless in violating, or
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resisting the execution of, such laws_.
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Unless such be the right and duty of jurors, it is plain that, instead
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of juries being a “palladium of liberty”—a barrier against the tyranny
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and oppression of the government—they are really mere tools in its
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hands, for carrying into execution any injustice and oppression it may
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desire to have executed.
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But for their right to judge of the law, _and the justice of the law_,
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juries would be no protection to an accused person, _even as to matters
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of fact_; for, if the government can dictate to a jury any law whatever,
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in a criminal case, it can certainly dictate to them the laws of
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evidence. That is, it can dictate what evidence is admissible, and what
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inadmissible, _and also what force or weight is to be given to the
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evidence admitted_. And if the government can thus dictate to a jury the
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laws of evidence, it can not only make it necessary for them to convict
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on a partial exhibition of the evidence rightfully pertaining to the
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case, but it can even require them to convict on any evidence whatever
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that it pleases to offer them.
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That the rights and duties of jurors must necessarily be such as are
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here claimed for them, will be evident when it is considered what the
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trial by jury is, and what is its object.
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_“The trial by jury,” then, is a “trial by the country”—that is, by the
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people—as distinguished from a trial by the government._
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It was anciently called “trial _per pais_”—that is, “trial by the
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country.” And now, in every criminal trial, the jury are told that the
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accused “has, for trial, put himself upon the _country_; which _country_
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you (the jury) are.”
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_The object of this trial “by the country” or by the people, in
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preference to a trial by the government, is to guard against every
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species of oppression by the government. In order to effect this end, it
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is indispensable that the people, or “the country,” judge of and
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determine their own liberties against the government; instead of the
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government’s judging of and determining its own powers over the people.
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How is it possible that juries can do anything to protect the liberties
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of the people against the government, if they are not allowed to
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determine what those liberties are?_
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Any government, that is its own judge of, and determines authoritatively
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for the people, what are its own powers over the people, is an absolute
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government of course. It has all the powers that it chooses to exercise.
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There is no other—or at least no more accurate—definition of a
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despotism than this.
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On the other hand, any people, that judge of, and determine
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authoritatively for the government, what are their own liberties against
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the government, of course retain all the liberties they wish to enjoy.
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_And this is freedom._ At least, it is freedom _to them_; because,
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although it may be theoretically imperfect, it, nevertheless,
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corresponds to _their_ highest notions of freedom.
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To secure this right of the people to judge of their own liberties
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against the government, the jurors are taken, (or must be, to make them
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lawful jurors,) from the body of the people, _by lot_, or by some
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process that precludes any previous knowledge, choice, or selection of
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them, on the part of the government. This is done to prevent the
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government’s constituting a jury of its own partisans or friends; in
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other words, to prevent the government’s _packing_ a jury, with a view
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to maintain its own laws, and accomplish its own purposes.
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It is supposed that, if twelve men be taken, _by lot_, from the mass of
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the people, without the possibility of any previous knowledge, choice,
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or selection of them, on the part of the government, the jury will be a
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fair epitome of “the country” at large, and not merely of the party or
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faction that sustain the measures of the government; that substantially
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all classes of opinions, prevailing among the people, will be
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represented in the jury; and especially that the opponents of the
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government, (if the government have any opponents,) will be represented
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there, as well as its friends; that the classes, who are oppressed by
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the laws of the government, (if any are thus oppressed,) will have their
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representatives in the jury, as well as those classes, who take sides
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with the oppressor—that is, with the government.
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It is fairly presumable that such a tribunal will agree to no conviction
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except such as _substantially the whole country_ would agree to, if they
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were present, taking part in the trial. A trial by such a tribunal is,
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therefore, in effect, “a trial by the country.” In its results it
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probably comes as near to a trial by the _whole_ country, as any trial
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that it is practicable to have, without too great inconvenience and
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expense. And as unanimity is required for a conviction, it follows that
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no one can be convicted, except for the violation of such laws as
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substantially the whole country wish to have maintained. The government
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can enforce none of its laws, (by punishing offenders, through the
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verdicts of juries,) except such as substantially the whole people wish
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to have enforced. The government, therefore, consistently with the trial
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by jury, can exercise no powers over the people, (or, what is the same
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thing, over the accused person, who represents the rights of the
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people,) except such as substantially the whole people of the country
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consent that it may exercise. In such a trial, therefore, “the country,”
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or the people, judge of and determine their own liberties against the
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government, instead of the government’s judging of and determining its
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own powers over the people.
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But all this “trial by the country” would be no trial at all “by the
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country,” but only a trial by the government, if the government could
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either declare who may, and who may not, be jurors, or could dictate to
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the jury anything whatever, either of law or evidence, that is of the
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essence of the trial.
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If the government may decide who may, and who may not, be jurors, it
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will of course select only its partisans, and those friendly to its
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measures. It may not only prescribe who may, and who may not, be
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eligible to be drawn as jurors; but it may also question each person
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drawn as a juror, as to his sentiments in regard to the particular law
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involved in each trial, before suffering him to be sworn on the panel;
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and exclude him if he be found unfavorable to the maintenance of such a
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law.[^1]
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So, also, if the government may dictate to the jury _what laws they are
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to enforce_, it is no longer a “trial by the country,” but a trial by
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the government; because the jury then try the accused, not by any
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standard of their own—not by their own judgments of their rightful
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liberties—but by a standard dictated to them by the government. And the
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standard, thus dictated by the government, becomes the measure of the
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people’s liberties. If the government dictate the standard of trial, it
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of course dictates the results of the trial. And such a trial is no
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trial by the country, but only a trial by the government; and in it the
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government determines what are its own powers over the people, instead
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of the people’s determining what are their own liberties against the
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government. In short, if the jury have no right to judge of the justice
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of a law of the government, they plainly can do nothing to protect the
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people against the oppressions of the government; for there are no
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oppressions which the government may not authorize by law.
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The jury are also to judge whether the laws are rightly expounded to
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them by the court. Unless they judge on this point, they do nothing to
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protect their liberties against the oppressions that are capable of
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being practised under cover of a corrupt exposition of the laws. If the
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judiciary can authoritatively dictate to a jury any exposition of the
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law, they can dictate to them the law itself, and such laws as they
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please; because laws are, in practice, one thing or another, according
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as they are expounded.
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The jury must also judge whether there really be any such law, (be it
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good or bad,) as the accused is charged with having transgressed. Unless
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they judge on this point, the people are liable to have their liberties
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taken from them by brute force, without any law at all.
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The jury must also judge of the laws of evidence. If the government can
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dictate to a jury the laws of evidence, it can not only shut out any
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evidence it pleases, tending to vindicate the accused, but it can
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require that any evidence whatever, that it pleases to offer, be held as
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conclusive proof of any offence whatever which the government chooses to
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allege.
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It is manifest, therefore, that the jury must judge of and try the whole
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case, and every part and parcel of the case, free of any dictation or
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authority on the part of the government. They must judge of the
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existence of the law; of the true exposition of the law; _of the justice
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of the law_; and of the admissibility and weight of all the evidence
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offered; otherwise the government will have everything its own way; the
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jury will be mere puppets in the hands of the government; and the trial
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will be, in reality, a trial by the government, and not a “trial by the
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country.” By such trials the government will determine its own powers
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over the people, instead of the people’s determining their own liberties
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against the government; and it will be an entire delusion to talk, as
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for centuries we have done, of the trial by jury, as a “palladium of
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liberty,” or as any protection to the people against the oppression and
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tyranny of the government.
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The question, then, between trial by jury, as thus described, and trial
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by the government, is simply a question between liberty and despotism.
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The authority to judge what are the powers of the government, and what
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the liberties of the people, must necessarily be vested in one or the
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other of the parties themselves—the government, or the people; because
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there is no third party to whom it can be entrusted. If the authority be
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vested in the government, the government is absolute, and the people
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have no liberties except such as the government sees fit to indulge them
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with. If, on the other hand, that authority be vested in the people,
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then the people have all liberties, (as against the government,) except
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such as substantially the whole people (through a jury) choose to
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disclaim; and the government can exercise no power except such as
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substantially the whole people (through a jury) consent that it may
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exercise.
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\section{}
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The force and justice of the preceding argument cannot be evaded by
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saying that the government is chosen by the people; that, in theory, it
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represents the people; that it is designed to do the will of the people;
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that its members are all sworn to observe the fundamental or
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constitutional law instituted by the people; that its acts are therefore
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entitled to be considered the acts of the people; and that to allow a
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jury, representing the people, to invalidate the acts of the government,
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would therefore be arraying the people against themselves.
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There are two answers to such an argument.
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One answer is, that, in a representative government, there is no
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absurdity or contradiction, nor any arraying of the people against
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themselves, in requiring that the statutes or enactments of the
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government shall pass the ordeal of any number of separate tribunals,
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before it shall be determined that they are to have the force of laws.
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Our American constitutions have provided five of these separate
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tribunals, to wit, representatives, senate, executive,[^2] jury, and
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judges; and have made it necessary that each enactment shall pass the
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ordeal of all these separate tribunals, before its authority can be
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established by the punishment of those who choose to transgress it. And
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there is no more absurdity or inconsistency in making a jury one of
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these several tribunals, than there is in making the representatives, or
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the senate, or the executive, or the judges, one of them. There is no
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more absurdity in giving a jury a veto upon the laws, than there is in
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giving a veto to each of these other tribunals. The people are no more
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arrayed against themselves, when a jury puts its veto upon a statute,
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which the other tribunals have sanctioned, than they are when the same
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veto is exercised by the representatives, the senate, the executive, or
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the judges.
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But another answer to the argument that the people are arrayed against
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themselves, when a jury hold an enactment of the government invalid, is,
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that the government, and all the departments of the government, _are
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merely the servants and agents of the people_; not invested with
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arbitrary or absolute authority to bind the people, but required to
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submit all their enactments to the judgment of a tribunal more fairly
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representing the whole people, before they carry them into execution, by
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punishing any individual for transgressing them. If the government were
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not thus required to submit their enactments to the judgment of “the
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country,” before executing them upon individuals—if, in other words,
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the people had reserved to themselves no veto upon the acts of the
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government, the government, instead of being a mere servant and agent of
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the people, would be an absolute despot over the people. It would have
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all power in its own hands; because the power to _punish_ carries all
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other powers with it. A power that can, of itself, and by its own
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authority, punish disobedience, can compel obedience and submission, and
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is above all responsibility for the character of its laws. In short, it
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is a despotism.
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And it is of no consequence to inquire how a government came by this
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power to punish, whether by prescription, by inheritance, by usurpation,
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or by delegation from the people? _If it have now but got it_, the
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government is absolute.
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It is plain, therefore, that if the people have invested the government
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with power to make laws that absolutely bind the people, and to punish
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the people for transgressing those laws, the people have surrendered
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their liberties unreservedly into the hands of the government.
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It is of no avail to say, in answer to this view of the case, that in
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surrendering their liberties into the hands of the government, the
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people took an oath from the government, that it would exercise its
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power within certain constitutional limits; for when did oaths ever
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restrain a government that was otherwise unrestrained? Or when did a
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government fail to determine that all its acts were within the
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constitutional and authorized limits of its power, if it were permitted
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to determine that question for itself?
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Neither is it of any avail to say, that, if the government abuse its
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power, and enact unjust and oppressive laws, the government may be
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changed by the influence of discussion, and the exercise of the right of
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suffrage. Discussion can do nothing to prevent the enactment, or procure
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the repeal, of unjust laws, unless it be understood that the discussion
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is to be followed by resistance. Tyrants care nothing for discussions
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that are to end only in discussion. Discussions, which do not interfere
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with the enforcement of their laws, are but idle wind to them. Suffrage
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is equally powerless and unreliable. It can be exercised only
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periodically; and the tyranny must at least be borne until the time for
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suffrage comes. Besides, when the suffrage is exercised, it gives no
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guaranty for the repeal of existing laws that are oppressive, and no
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security against the enactment of new ones that are equally so. The
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second body of legislators are liable and likely to be just as
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tyrannical as the first. If it be said that the second body may be
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chosen for their integrity, the answer is, that the first were chosen
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for that very reason, and yet proved tyrants. The second will be exposed
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to the same temptations as the first, and will be just as likely to
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prove tyrannical. Who ever heard that succeeding legislatures were, on
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the whole, more honest than those that preceded them? What is there in
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the nature of men or things to make them so? If it be said that the first
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body were chosen from motives of injustice, that fact proves that there is
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a portion of society who desire to establish injustice; and if they were
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powerful or artful enough to procure the election of their instruments to
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compose the first legislature, they will be likely to be powerful or
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artful enough to procure the election of the same or similar instruments
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to compose the second. The right of suffrage, therefore, and even a change
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of legislators, guarantees no change of legislation—certainly no change
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for the better. Even if a change for the better actually comes, it comes
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too late, because it comes only after more or less injustice has been
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irreparably done.
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But, at best, the right of suffrage can be exercised only periodically;
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and between the periods the legislators are wholly irresponsible. No
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despot was ever more entirely irresponsible than are republican
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legislators during the period for which they are chosen. They can
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neither be removed from their office, nor called to account while in
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their office, nor punished after they leave their office, be their
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tyranny what it may. Moreover, the judicial and executive departments of
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the government are equally irresponsible _to the people_, and are only
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responsible, (by impeachment, and dependence for their salaries), to
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these irresponsible legislators. This dependence of the judiciary and
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executive upon the legislature is a guaranty that they will always
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sanction and execute its laws, whether just or unjust. Thus the
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legislators hold the whole power of the government in their hands, and
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are at the same time utterly irresponsible for the manner in which they
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use it.
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If, now, this government, (the three branches thus really united in
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one), can determine the validity of, and enforce, its own laws, it is,
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for the time being, entirely absolute, and wholly irresponsible to the
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people.
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But this is not all. These legislators, and this government, so
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irresponsible while in power, can perpetuate their power at pleasure, if
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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.
|
|
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|
|||||||
# 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.
|
|
@ -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.
|
|
@ -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.
|
|
@ -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.
|
|
@ -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.
|
|
@ -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.
|
|
@ -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.
|
|
@ -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.
|
|
@ -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.
|
|
||||||
|
|
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[^117]: Such as restraints upon banking, upon the rates of
|
|
||||||
interest, upon traffic with foreigners, &c., &c.
|
|
@ -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.
|
|
@ -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.
|
|
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