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# THE RIGHT OF JURIES TO JUDGE OF THE JUSTICE OF LAWS
\section{}
For more than six hundred years—that is, since Magna Carta, in
1215—there has been no clearer principle of English or American
constitutional law, than that, in criminal cases, it is not only the
right and duty of juries to judge what are the facts, what is the law,
and what was the moral intent of the accused; _but that it is also their
right, and their primary and paramount duty, to judge of the justice of
the law, and to hold all laws invalid, that are, in their opinion,
unjust or oppressive, and all persons guiltless in violating, or
resisting the execution of, such laws_.
Unless such be the right and duty of jurors, it is plain that, instead
of juries being a “palladium of liberty”—a barrier against the tyranny
and oppression of the government—they are really mere tools in its
hands, for carrying into execution any injustice and oppression it may
desire to have executed.
But for their right to judge of the law, _and the justice of the law_,
juries would be no protection to an accused person, _even as to matters
of fact_; for, if the government can dictate to a jury any law whatever,
in a criminal case, it can certainly dictate to them the laws of
evidence. That is, it can dictate what evidence is admissible, and what
inadmissible, _and also what force or weight is to be given to the
evidence admitted_. And if the government can thus dictate to a jury the
laws of evidence, it can not only make it necessary for them to convict
on a partial exhibition of the evidence rightfully pertaining to the
case, but it can even require them to convict on any evidence whatever
that it pleases to offer them.
That the rights and duties of jurors must necessarily be such as are
here claimed for them, will be evident when it is considered what the
trial by jury is, and what is its object.
_“The trial by jury,” then, is a “trial by the country”—that is, by the
people—as distinguished from a trial by the government._
It was anciently called “trial _per pais_”—that is, “trial by the
country.” And now, in every criminal trial, the jury are told that the
accused “has, for trial, put himself upon the _country_; which _country_
you (the jury) are.”
_The object of this trial “by the country” or by the people, in
preference to a trial by the government, is to guard against every
species of oppression by the government. In order to effect this end, it
is indispensable that the people, or “the country,” judge of and
determine their own liberties against the government; instead of the
government’s judging of and determining its own powers over the people.
How is it possible that juries can do anything to protect the liberties
of the people against the government, if they are not allowed to
determine what those liberties are?_
Any government, that is its own judge of, and determines authoritatively
for the people, what are its own powers over the people, is an absolute
government of course. It has all the powers that it chooses to exercise.
There is no other—or at least no more accurate—definition of a
despotism than this.
On the other hand, any people, that judge of, and determine
authoritatively for the government, what are their own liberties against
the government, of course retain all the liberties they wish to enjoy.
_And this is freedom._ At least, it is freedom _to them_; because,
although it may be theoretically imperfect, it, nevertheless,
corresponds to _their_ highest notions of freedom.
To secure this right of the people to judge of their own liberties
against the government, the jurors are taken, (or must be, to make them
lawful jurors,) from the body of the people, _by lot_, or by some
process that precludes any previous knowledge, choice, or selection of
them, on the part of the government. This is done to prevent the
government’s constituting a jury of its own partisans or friends; in
other words, to prevent the government’s _packing_ a jury, with a view
to maintain its own laws, and accomplish its own purposes.
It is supposed that, if twelve men be taken, _by lot_, from the mass of
the people, without the possibility of any previous knowledge, choice,
or selection of them, on the part of the government, the jury will be a
fair epitome of “the country” at large, and not merely of the party or
faction that sustain the measures of the government; that substantially
all classes of opinions, prevailing among the people, will be
represented in the jury; and especially that the opponents of the
government, (if the government have any opponents,) will be represented
there, as well as its friends; that the classes, who are oppressed by
the laws of the government, (if any are thus oppressed,) will have their
representatives in the jury, as well as those classes, who take sides
with the oppressor—that is, with the government.
It is fairly presumable that such a tribunal will agree to no conviction
except such as _substantially the whole country_ would agree to, if they
were present, taking part in the trial. A trial by such a tribunal is,
therefore, in effect, “a trial by the country.” In its results it
probably comes as near to a trial by the _whole_ country, as any trial
that it is practicable to have, without too great inconvenience and
expense. And as unanimity is required for a conviction, it follows that
no one can be convicted, except for the violation of such laws as
substantially the whole country wish to have maintained. The government
can enforce none of its laws, (by punishing offenders, through the
verdicts of juries,) except such as substantially the whole people wish
to have enforced. The government, therefore, consistently with the trial
by jury, can exercise no powers over the people, (or, what is the same
thing, over the accused person, who represents the rights of the
people,) except such as substantially the whole people of the country
consent that it may exercise. In such a trial, therefore, “the country,”
or the people, judge of and determine their own liberties against the
government, instead of the government’s judging of and determining its
own powers over the people.
But all this “trial by the country” would be no trial at all “by the
country,” but only a trial by the government, if the government could
either declare who may, and who may not, be jurors, or could dictate to
the jury anything whatever, either of law or evidence, that is of the
essence of the trial.
If the government may decide who may, and who may not, be jurors, it
will of course select only its partisans, and those friendly to its
measures. It may not only prescribe who may, and who may not, be
eligible to be drawn as jurors; but it may also question each person
drawn as a juror, as to his sentiments in regard to the particular law
involved in each trial, before suffering him to be sworn on the panel;
and exclude him if he be found unfavorable to the maintenance of such a
law.[^1]
So, also, if the government may dictate to the jury _what laws they are
to enforce_, it is no longer a “trial by the country,” but a trial by
the government; because the jury then try the accused, not by any
standard of their own—not by their own judgments of their rightful
liberties—but by a standard dictated to them by the government. And the
standard, thus dictated by the government, becomes the measure of the
people’s liberties. If the government dictate the standard of trial, it
of course dictates the results of the trial. And such a trial is no
trial by the country, but only a trial by the government; and in it the
government determines what are its own powers over the people, instead
of the people’s determining what are their own liberties against the
government. In short, if the jury have no right to judge of the justice
of a law of the government, they plainly can do nothing to protect the
people against the oppressions of the government; for there are no
oppressions which the government may not authorize by law.
The jury are also to judge whether the laws are rightly expounded to
them by the court. Unless they judge on this point, they do nothing to
protect their liberties against the oppressions that are capable of
being practised under cover of a corrupt exposition of the laws. If the
judiciary can authoritatively dictate to a jury any exposition of the
law, they can dictate to them the law itself, and such laws as they
please; because laws are, in practice, one thing or another, according
as they are expounded.
The jury must also judge whether there really be any such law, (be it
good or bad,) as the accused is charged with having transgressed. Unless
they judge on this point, the people are liable to have their liberties
taken from them by brute force, without any law at all.
The jury must also judge of the laws of evidence. If the government can
dictate to a jury the laws of evidence, it can not only shut out any
evidence it pleases, tending to vindicate the accused, but it can
require that any evidence whatever, that it pleases to offer, be held as
conclusive proof of any offence whatever which the government chooses to
allege.
It is manifest, therefore, that the jury must judge of and try the whole
case, and every part and parcel of the case, free of any dictation or
authority on the part of the government. They must judge of the
existence of the law; of the true exposition of the law; _of the justice
of the law_; and of the admissibility and weight of all the evidence
offered; otherwise the government will have everything its own way; the
jury will be mere puppets in the hands of the government; and the trial
will be, in reality, a trial by the government, and not a “trial by the
country.” By such trials the government will determine its own powers
over the people, instead of the people’s determining their own liberties
against the government; and it will be an entire delusion to talk, as
for centuries we have done, of the trial by jury, as a “palladium of
liberty,” or as any protection to the people against the oppression and
tyranny of the government.
The question, then, between trial by jury, as thus described, and trial
by the government, is simply a question between liberty and despotism.
The authority to judge what are the powers of the government, and what
the liberties of the people, must necessarily be vested in one or the
other of the parties themselves—the government, or the people; because
there is no third party to whom it can be entrusted. If the authority be
vested in the government, the government is absolute, and the people
have no liberties except such as the government sees fit to indulge them
with. If, on the other hand, that authority be vested in the people,
then the people have all liberties, (as against the government,) except
such as substantially the whole people (through a jury) choose to
disclaim; and the government can exercise no power except such as
substantially the whole people (through a jury) consent that it may
exercise.
\section{}
The force and justice of the preceding argument cannot be evaded by
saying that the government is chosen by the people; that, in theory, it
represents the people; that it is designed to do the will of the people;
that its members are all sworn to observe the fundamental or
constitutional law instituted by the people; that its acts are therefore
entitled to be considered the acts of the people; and that to allow a
jury, representing the people, to invalidate the acts of the government,
would therefore be arraying the people against themselves.
There are two answers to such an argument.
One answer is, that, in a representative government, there is no
absurdity or contradiction, nor any arraying of the people against
themselves, in requiring that the statutes or enactments of the
government shall pass the ordeal of any number of separate tribunals,
before it shall be determined that they are to have the force of laws.
Our American constitutions have provided five of these separate
tribunals, to wit, representatives, senate, executive,[^2] jury, and
judges; and have made it necessary that each enactment shall pass the
ordeal of all these separate tribunals, before its authority can be
established by the punishment of those who choose to transgress it. And
there is no more absurdity or inconsistency in making a jury one of
these several tribunals, than there is in making the representatives, or
the senate, or the executive, or the judges, one of them. There is no
more absurdity in giving a jury a veto upon the laws, than there is in
giving a veto to each of these other tribunals. The people are no more
arrayed against themselves, when a jury puts its veto upon a statute,
which the other tribunals have sanctioned, than they are when the same
veto is exercised by the representatives, the senate, the executive, or
the judges.
But another answer to the argument that the people are arrayed against
themselves, when a jury hold an enactment of the government invalid, is,
that the government, and all the departments of the government, _are
merely the servants and agents of the people_; not invested with
arbitrary or absolute authority to bind the people, but required to
submit all their enactments to the judgment of a tribunal more fairly
representing the whole people, before they carry them into execution, by
punishing any individual for transgressing them. If the government were
not thus required to submit their enactments to the judgment of “the
country,” before executing them upon individuals—if, in other words,
the people had reserved to themselves no veto upon the acts of the
government, the government, instead of being a mere servant and agent of
the people, would be an absolute despot over the people. It would have
all power in its own hands; because the power to _punish_ carries all
other powers with it. A power that can, of itself, and by its own
authority, punish disobedience, can compel obedience and submission, and
is above all responsibility for the character of its laws. In short, it
is a despotism.
And it is of no consequence to inquire how a government came by this
power to punish, whether by prescription, by inheritance, by usurpation,
or by delegation from the people? _If it have now but got it_, the
government is absolute.
It is plain, therefore, that if the people have invested the government
with power to make laws that absolutely bind the people, and to punish
the people for transgressing those laws, the people have surrendered
their liberties unreservedly into the hands of the government.
It is of no avail to say, in answer to this view of the case, that in
surrendering their liberties into the hands of the government, the
people took an oath from the government, that it would exercise its
power within certain constitutional limits; for when did oaths ever
restrain a government that was otherwise unrestrained? Or when did a
government fail to determine that all its acts were within the
constitutional and authorized limits of its power, if it were permitted
to determine that question for itself?
Neither is it of any avail to say, that, if the government abuse its
power, and enact unjust and oppressive laws, the government may be
changed by the influence of discussion, and the exercise of the right of
suffrage. Discussion can do nothing to prevent the enactment, or procure
the repeal, of unjust laws, unless it be understood that the discussion
is to be followed by resistance. Tyrants care nothing for discussions
that are to end only in discussion. Discussions, which do not interfere
with the enforcement of their laws, are but idle wind to them. Suffrage
is equally powerless and unreliable. It can be exercised only
periodically; and the tyranny must at least be borne until the time for
suffrage comes. Besides, when the suffrage is exercised, it gives no
guaranty for the repeal of existing laws that are oppressive, and no
security against the enactment of new ones that are equally so. The
second body of legislators are liable and likely to be just as
tyrannical as the first. If it be said that the second body may be
chosen for their integrity, the answer is, that the first were chosen
for that very reason, and yet proved tyrants. The second will be exposed
to the same temptations as the first, and will be just as likely to
prove tyrannical. Who ever heard that succeeding legislatures were, on
the whole, more honest than those that preceded them? What is there in
the nature of men or things to make them so? If it be said that the first
body were chosen from motives of injustice, that fact proves that there is
a portion of society who desire to establish injustice; and if they were
powerful or artful enough to procure the election of their instruments to
compose the first legislature, they will be likely to be powerful or
artful enough to procure the election of the same or similar instruments
to compose the second. The right of suffrage, therefore, and even a change
of legislators, guarantees no change of legislation—certainly no change
for the better. Even if a change for the better actually comes, it comes
too late, because it comes only after more or less injustice has been
irreparably done.
But, at best, the right of suffrage can be exercised only periodically;
and between the periods the legislators are wholly irresponsible. No
despot was ever more entirely irresponsible than are republican
legislators during the period for which they are chosen. They can
neither be removed from their office, nor called to account while in
their office, nor punished after they leave their office, be their
tyranny what it may. Moreover, the judicial and executive departments of
the government are equally irresponsible _to the people_, and are only
responsible, (by impeachment, and dependence for their salaries), to
these irresponsible legislators. This dependence of the judiciary and
executive upon the legislature is a guaranty that they will always
sanction and execute its laws, whether just or unjust. Thus the
legislators hold the whole power of the government in their hands, and
are at the same time utterly irresponsible for the manner in which they
use it.
If, now, this government, (the three branches thus really united in
one), can determine the validity of, and enforce, its own laws, it is,
for the time being, entirely absolute, and wholly irresponsible to the
people.
But this is not all. These legislators, and this government, so
irresponsible while in power, can perpetuate their power at pleasure, if
they can determine what legislation is authoritative upon the people,
and can enforce obedience to it; for they can not only declare their
power perpetual, but they can enforce submission to all legislation that
is necessary to secure its perpetuity. They can, for example, prohibit
all discussion of the rightfulness of their authority; forbid the use of
the suffrage; prevent the election of any successors; disarm, plunder,
imprison, and even kill all who refuse submission. If, therefore, the
government (all departments united) be absolute for a day—that is, if
it can, for a day, enforce obedience to its own laws—it can, in that
day, secure its power for all time—like the queen, who wished to reign
but for a day, but in that day caused the king, her husband, to be
slain, and usurped his throne.
Nor will it avail to say that such acts would be unconstitutional, and
that unconstitutional acts may be lawfully resisted; for everything a
government pleases to do will, of course, be determined to be
constitutional, if the government itself be permitted to determine the
question of the constitutionality of its own acts. Those who are capable
of tyranny, are capable of perjury to sustain it.
The conclusion, therefore, is, that any government, that can, _for a
day_, enforce its own laws, without appealing to the people, (or to a
tribunal fairly representing the people,) for their consent, is, in
theory, an absolute government, irresponsible to the people, and can
perpetuate its power at pleasure.
The trial by jury is based upon a recognition of this principle, and
therefore forbids the government to execute any of its laws, by
punishing violators, in any case whatever, without first getting the
consent of “the country,” or the people, through a jury. In this way,
the people, at all times, hold their liberties in their own hands, and
never surrender them, even for a moment, into the hands of the
government.
The trial by jury, then, gives to any and every individual the liberty,
at any time, to disregard or resist any law whatever of the government,
if he be willing to submit to the decision of a jury, the questions,
whether the law be intrinsically just and obligatory? and whether his
conduct, in disregarding or resisting it, were right in itself? And any
law, which does not, in such trial, obtain the unanimous sanction of
twelve men, taken at random from the people, and judging according to
the standard of justice in their own minds, free from all dictation and
authority of the government, may be transgressed and resisted with
impunity, by whomsoever pleases to transgress or resist it.[^3]
The trial by jury authorizes all this, or it is a sham and a hoax,
utterly worthless for protecting the people against oppression. If it do
not authorize an individual to resist the first and least act of
injustice or tyranny, on the part of the government, it does not
authorize him to resist the last and the greatest. If it do not
authorize individuals to nip tyranny in the bud, it does not authorize
them to cut it down when its branches are filled with the ripe fruits of
plunder and oppression.
Those who deny the right of a jury to protect an individual in resisting
an unjust law of the government, deny him all _legal_ defence
whatsoever against oppression. The right of revolution, which tyrants,
in mockery, accord to mankind, is no _legal_ right _under_ a government;
it is only a _natural_ right to overturn a government. The government
itself never acknowledges this right. And the right is practically
established only when and because the government no longer exists to
call it in question. The right, therefore, can be exercised with
impunity, only when it is exercised victoriously. All _unsuccessful_
attempts at revolution, however justifiable in themselves, are punished
as treason, if the government be permitted to judge of the treason. The
government itself never admits the injustice of its laws, as a legal
defence for those who have attempted a revolution, and failed. The right
of revolution, therefore, is a right of no practical value, except for
those who are stronger than the government. So long, therefore, as the
oppressions of a government are kept within such limits as simply not to
exasperate against it a power greater than its own, the right of
revolution cannot be appealed to, and is therefore inapplicable to the
case. This affords a wide field for tyranny; and if a jury cannot _here_
intervene, the oppressed are utterly defenceless.
It is manifest that the only security against the tyranny of the
government lies in forcible resistance to the execution of the
injustice; because the injustice will certainly be executed, _unless it
be forcibly resisted_. And if it be but suffered to be executed, it must
then be borne; for the government never makes compensation for its own
wrongs.
Since, then, this forcible resistance to the injustice of the government
is the only possible means of preserving liberty, it is indispensable to
all _legal_ liberty that this _resistance_ should be _legalized_. It is
perfectly self-evident that where there is no _legal_ right to resist
the oppression of the government, there can be no _legal_ liberty. And
here it is all-important to notice, that, _practically speaking_, there
can be no _legal_ right to resist the oppressions of the government,
unless there be some _legal_ tribunal, other than the government, and
wholly independent of, and _above_, the government, to judge between the
government and those who resist its oppressions; in other words, to
judge what laws of the government are to be obeyed, and what may be
resisted and held for nought. The only tribunal known to our laws, for
this purpose, is a jury. If a jury have not the right to judge between
the government and those who disobey its laws, and resist its
oppressions, the government is absolute, and the people, _legally
speaking_, are slaves. Like many other slaves they may have sufficient
courage and strength to keep their masters somewhat in check; but they
are nevertheless _known to the law_ only as slaves.
That this right of resistance was recognized as a common law right, when
the ancient and genuine trial by jury was in force, is not only proved
by the nature of the trial itself, but is acknowledged by history.[^4]
This right of resistance is recognized by the constitution of the United
States, as a strictly legal and constitutional right. It is so
recognized, first by the provision that “the trial of all crimes, except
in cases of impeachment, shall be by jury”—that is, by the country—and
not by the government; secondly, by the provision that “the right of the
people to keep and bear arms shall not be infringed.” This
constitutional security for “the right to keep and bear arms,” implies
the right to use them—as much as a constitutional security for the
right to buy and keep food would have implied the right to eat it. The
constitution, therefore, takes it for granted that the people will
judge of the conduct of the government, and that, as they have the
right, they will also have the sense, to use arms, whenever the
necessity of the case justifies it. And it is a sufficient and _legal_
defence for a person accused of using arms against the government, if he
can show, to the satisfaction of a jury, _or even any one of a jury_,
that the law he resisted was an unjust one.
In the American _State_ constitutions also, this right of resistance to
the oppressions of the government is recognized, in various ways, as a
natural, legal, and constitutional right. In the first place, it is so
recognized by provisions establishing the trial by jury; thus requiring
that accused persons shall be tried by “the country,” instead of the
government. In the second place, it is recognized by many of them, as,
for example, those of Massachusetts, Maine, Vermont, Connecticut,
Pennsylvania, Ohio, Indiana, Michigan, Kentucky, Tennessee, Arkansas,
Mississippi, Alabama, and Florida, by provisions expressly declaring
that the people shall have the right to bear arms. In many of them also,
as, for example, those of Maine, New Hampshire, Vermont, Massachusetts,
New Jersey, Pennsylvania, Delaware, Ohio, Indiana, Illinois, Florida,
Iowa, and Arkansas, by provisions, in their bills of rights, declaring
that men have a natural, inherent, and inalienable right of “_defending_
their lives and liberties.” This, of course, means that they have a
right to defend them against any injustice _on the part of the
government_, and not merely on the part of private individuals; because
the object of all bills of rights is to assert the rights of individuals
and the people, _as against the government_, and not as against private
persons. It would be a matter of ridiculous supererogation to assert, in
a constitution of government, the natural right of men to defend their
lives and liberties against private trespassers.
Many of these bills of rights also assert the natural right of all men
to protect their property—that is, to protect it _against the
government_. It would be unnecessary and silly indeed to assert, in a
constitution of government, the natural right of individuals to protect
their property against thieves and robbers.
The constitutions of New Hampshire and Tennessee also declare that “The
doctrine of non-resistance against arbitrary power and oppression is
absurd, slavish, and destructive of the good and happiness of mankind.”
The legal effect of these constitutional recognitions of the right of
individuals to defend their property, liberties, and lives, against the
government, is to legalize resistance to all injustice and oppression,
of every name and nature whatsoever, on the part of the government.
But for this right of resistance, on the part of the people, all
governments would become tyrannical to a degree of which few people are
aware. Constitutions are utterly worthless to restrain the tyranny of
governments, unless it be understood that the people will, by force,
compel the government to keep within the constitutional limits.
Practically speaking, no government knows any limits to its power,
except the endurance of the people. But that the people are stronger
than the government, and will resist in extreme cases, our governments
would be little or nothing else than organized systems of plunder and
oppression. All, or nearly all, the advantage there is in fixing any
constitutional limits to the power of a government, is simply to give
notice to the government of the point at which it will meet with
resistance. If the people are then as good as their word, they may keep
the government within the bounds they have set for it; otherwise it will
disregard them—as is proved by the example of all our American
governments, in which the constitutions have all become obsolete, at the
moment of their adoption, for nearly or quite all purposes except the
appointment of officers, who at once become practically absolute, except
so far as they are restrained by the fear of popular resistance.
The bounds set to the power of the government, by the trial by jury, as
will hereafter be shown, are these—that the government shall never
touch the property, person, or natural or civil rights of an individual,
against his consent, (except for the purpose of bringing them before a
jury for trial,) unless in pursuance and _execution_ of a judgment, or
decree, rendered by a jury in each individual case, upon such evidence,
and such law, as are satisfactory to their own understandings and
consciences, irrespective of all legislation of the government.
[^1]: To show that this supposition is not an extravagant one, it
may be mentioned that courts have repeatedly questioned jurors to
ascertain whether they were prejudiced _against the government_—that
is, whether they were in favor of, or opposed to, such laws of the
government as were to be put in issue in the then pending trial. This
was done (in 1851) in the United States District Court for the District
of Massachusetts, by Peleg Sprague, the United States district judge, in
empanelling three several juries for the trials of Scott, Hayden, and
Morris, charged with having aided in the rescue of a fugitive slave from
the custody of the United States deputy marshal. This judge caused the
following question to be propounded to all the jurors separately; and
those who answered unfavorably for the purposes of the government, were
excluded from the panel.
> “Do you hold any opinions upon the subject of the Fugitive Slave Law,
> so called, which will induce you to refuse to convict a person
> indicted under it, if the facts set forth in the indictment, _and
> constituting the offence_, are proved against him, and the court
> direct you that the law is constitutional?”
The reason of this question was, that “the Fugitive Slave Law, so
called,” was so obnoxious to a large portion of the people, as to render
a conviction under it hopeless, if the jurors were taken
indiscriminately from among the people.
A similar question was soon afterwards propounded to the persons drawn
as jurors in the United States _Circuit_ Court for the District of
Massachusetts, by Benjamin R. Curtis one of the Justices of the Supreme
Court of the United States, in empanelling a jury for the trial of the
aforesaid Morris on the charge before mentioned; and those who did not
answer the question favorably for the government were again excluded
from the panel.
It has also been an habitual practice with the Supreme Court of
Massachusetts, in empanelling juries for the trial of _capital_
offences, to inquire of the persons drawn as jurors whether they had any
conscientious scruples against finding verdicts of guilty in such cases;
that is, whether they had any conscientious scruples against sustaining
the law prescribing death as the punishment of the crime to be tried;
and to exclude from the panel all who answered in the affirmative.
The only principle upon which these questions are asked, is this—that
no man shall be allowed to serve as juror, unless he be ready to enforce
any enactment of the government, however cruel or tyrannical it may be.
What is such a jury good for, as a protection against the tyranny of the
government? A jury like that is palpably nothing but a mere tool of
oppression in the hands of the government. A trial by such a jury is
really a trial by the government itself—and not a trial by the
country—because it is a trial only by men specially selected by the
government for their readiness to enforce its own tyrannical measures.
If that be the true principle of the trial by jury, the trial is utterly
worthless as a security to liberty. The Czar might, with perfect safety
to his authority, introduce the trial by jury into Russia, if he could
but be permitted to select his jurors from those who were ready to
maintain his laws, without regard to their injustice.
This example is sufficient to show that the very pith of the trial by
jury, as a safeguard to liberty, consists in the jurors being taken
indiscriminately from the whole people, and in their right to hold
invalid all laws which they think unjust.
[^2]: The executive has a qualified veto upon the passage of
laws, in most of our governments, and an absolute veto, in all of them,
upon the execution of any laws which he deems unconstitutional; because
his oath to support the constitution (as he understands it) forbids him
to execute any law that he deems unconstitutional.
[^3]: And if there be so much as a reasonable _doubt_ of the
justice of the laws, the benefit of that doubt must be given to the
defendant, and not to the government. So that the government must keep
its laws _clearly_ within the limits of justice, if it would ask a jury
to enforce them.
[^4]: _Hallam_ says, “The relation established between a lord and
his vassal by the feudal tenure, far from containing principles of any
servile and implicit obedience, permitted the compact to be dissolved in
case of its violation by either party. This extended as much to the
sovereign as to inferior lords. * * If a vassal was aggrieved, and if
justice was denied him, he sent a defiance, that is, a renunciation of
fealty to the king, and was entitled to enforce redress at the point of
his sword. It then became a contest of strength as between two
independent potentates, and was terminated by treaty, advantageous or
otherwise, according to the fortune of war. * * There remained the
original principle, that allegiance depended conditionally upon good
treatment, and that an appeal might be _lawfully_ made to arms against
an oppressive government. Nor was this, we may be sure, left for extreme
necessity, or thought to require a long-enduring forbearance. In modern
times, a king, compelled by his subjects’ swords to abandon any
pretension, would be supposed to have ceased to reign; and the express
recognition of such a right as that of insurrection has been justly
deemed inconsistent with the majesty of law. But ruder ages had ruder
sentiments. Force was necessary to repel force; and men accustomed to
see the king’s authority defied by a private riot, were not much shocked
when it was resisted in defence of public freedom.”—_3 Middle Ages_,
240-2.

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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_,
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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.

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# 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.

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# 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.

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# 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.

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# 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.

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# 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.

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# 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.

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# LIMITATIONS IMPOSED UPON THE MAJORITY BY THE TRIAL BY JURY
The principal objection, that will be made to the doctrine of this
essay, is, that under it, a jury would paralyze the power of the
majority, and veto all legislation that was not in accordance with the
will of the whole, or nearly the whole, people.
The answer to this objection is, that the limitation, which would be
thus imposed upon the legislative power, (whether that power be vested
in the majority, or minority, of the people,) is the crowning merit of
the trial by jury. It has other merits; but, though important in
themselves, they are utterly insignificant and worthless in comparison
with this.
It is this power of vetoing all partial and oppressive legislation, and
of restricting the government to the maintenance of such laws as the
_whole_, or substantially the whole, people _are agreed in_, that makes
the trial by jury “the palladium of liberty.” Without this power it
would never have deserved that name.
The will, or the pretended will, of the majority, is the last lurking
place of tyranny at the present day. The dogma, that certain individuals
and families have a divine appointment to govern the rest of mankind, is
fast giving place to the one that the larger number have a right to
govern the smaller; a dogma, which may, or may not, be less oppressive
in its practical operation, but which certainly is no less false or
tyrannical in principle, than the one it is so rapidly supplanting.
Obviously there is nothing in the nature of majorities, that insures
justice at their hands. They have the same passions as minorities, and
they have no qualities whatever that should be expected to prevent them
from practising the same tyranny as minorities, if they think it will
be for their interest to do so.
There is no particle of truth in the notion that the majority have a
_right_ to rule, or to exercise arbitrary power over, the minority,
simply because the former are more numerous than the latter. Two men
have no more natural right to rule one, than one has to rule two. Any
single man, or any body of men, many or few, have a natural right to
maintain justice for themselves, and for any others who may need their
assistance, against the injustice of any and all other men, without
regard to their numbers; and majorities have no right to do any more
than this. The relative numbers of the opposing parties have nothing to
do with the question of right. And no more tyrannical principle was ever
avowed, than that the will of the majority ought to have the force of
law, without regard to its justice; or, what is the same thing, that the
will of the majority ought always to be presumed to be in accordance
with justice. Such a doctrine is only another form of the doctrine that
might makes right.
When _two_ men meet _one_ upon the highway, or in the wilderness, have
they a right to dispose of his life, liberty, or property at their
pleasure, simply because they are the more numerous party? Or is he
bound to submit to lose his life, liberty, or property, if they demand
it, merely because he is the less numerous party? Or, because they are
more numerous than he, is he bound to presume that they are governed
only by superior wisdom, and the principles of justice, and by no
selfish passion that can lead them to do him a wrong? Yet this is the
principle, which it is claimed should govern men in all their civil
relations to each other. Mankind fall in company with each other on the
highway or in the wilderness of life, and it is claimed that the more
numerous party, simply by virtue of their superior numbers, have the
right arbitrarily to dispose of the life, liberty, and property of the
minority; and that the minority are bound, by reason of their inferior
numbers, to practise abject submission, and consent to hold their
natural rights,—any, all, or none, as the case may be,—at the mere
will and pleasure of the majority; as if all a man’s natural rights
expired, or were suspended by the operation of a paramount law, the
moment he came into the presence of superior numbers.
If such be the true nature of the relations men hold to each other in
this world, it puts an end to all such things as crimes, unless they be
perpetrated upon those who are equal or superior, in number, to the
actors. All acts committed against persons _inferior_ in number to the
aggressors, become but the exercise of rightful authority. And
consistency with their own principles requires that all governments,
founded on the will of the majority, should recognize this plea as a
sufficient justification for all crimes whatsoever.
If it be said that the majority should be allowed to rule, not because
they are stronger than the minority, but because their superior numbers
furnish a _probability_ that they are in the right; one answer is, that
the lives, liberties, and properties of men are too valuable to them,
and the natural presumptions are too strong in their favor, to justify
the destruction of them by their fellow-men on a mere balancing of
probabilities, _or on any ground whatever short of certainty beyond a
reasonable doubt_. This last is the moral rule universally recognized to
be binding upon single individuals. And in the forum of conscience the
same rule is equally binding upon governments, for governments are mere
associations of individuals. This is the rule on which the trial by jury
is based. And it is plainly the only rule that ought to induce a man to
submit his rights to the adjudication of his fellow-men, or dissuade him
from a forcible defence of them.
Another answer is, that if two opposing parties could be supposed to
have no personal interests or passions involved, to warp their
judgments, or corrupt their motives, the fact that one of the parties
was more numerous than the other, (a fact that leaves the comparative
intellectual competency of the two parties entirely out of
consideration,) might, perhaps, furnish a slight, but at best only a
very slight, probability that such party was on the side of justice. But
when it is considered that the parties are liable to differ in their
intellectual capacities, and that one, or the other, or both, are
undoubtedly under the influence of such passions as rivalry, hatred,
avarice, and ambition,—passions that are nearly certain to pervert
their judgments, and very likely to corrupt their motives,—all
probabilities founded upon a mere numerical majority, in one party, or
the other, vanish at once; and the decision of the majority becomes, to
all practical purposes, a mere decision of chance. And to dispose of
men’s properties, liberties, and lives, by the mere process of
enumerating such parties, is not only as palpable gambling as was ever
practised, but it is also the most atrocious that was ever practised,
except in matters of government. And where government is instituted on
this principle, (as in the United States, for example,) the nation is at
once converted into one great gambling establishment; where all the
rights of men are the stakes; a few bold bad men throw the dice—(dice
loaded with all the hopes, fears, interests, and passions which rage in
the breasts of ambitious and desperate men,)—and all the people, from
the interests they have depending, become enlisted, excited, agitated,
and generally corrupted, by the hazards of the game.
The trial by jury disavows the majority principle altogether; and
proceeds upon the ground that every man should be presumed to be
entitled to life, liberty, and such property as he has in his
possession; and that the government should lay its hand upon none of
them, (except for the purpose of bringing them before a tribunal for
adjudication,) unless it be first ascertained, _beyond a reasonable
doubt_, in every individual case, that justice requires it.
To ascertain whether there be such reasonable doubt, it takes twelve men
_by lot_ from the whole body of mature men. If any of these twelve are
proved to be under the influence of any _special_ interest or passion,
that may either pervert their judgments, or corrupt their motives, they
are set aside as unsuitable for the performance of a duty requiring such
absolute impartiality and integrity; and others substituted in their
stead. When the utmost practicable impartiality is attained on the part
of the whole twelve, they are sworn to the observance of justice; and
their unanimous concurrence is then held to be necessary to remove that
reasonable doubt, which, unremoved, would forbid the government to lay
its hand on its victim.
Such is the caution which the trial by jury both practises and
inculcates, against the violation of justice, on the part of the
government, towards the humblest individual, in the smallest matter
affecting his civil rights, his property, liberty, or life. And such is
the contrast, which the trial by jury presents, to that gambler’s and
robber’s rule, that the majority have a right, by virtue of their
superior numbers, and without regard to justice, to dispose at pleasure
of the property and persons of all bodies of men less numerous than
themselves.
The difference, in short, between the two systems, is this. The trial by
jury protects person and property, inviolate to their possessors, from
the hand of the law, unless _justice, beyond a reasonable doubt_,
require them to be taken. The majority principle takes person and
property from their possessors, at the mere arbitrary will of a
majority, who are liable and likely to be influenced, in taking them, by
motives of oppression, avarice, and ambition.
If the relative numbers of opposing parties afforded sufficient evidence
of the comparative justice of their claims, the government should carry
the principle into its courts of justice; and instead of referring
controversies to impartial and disinterested men,—to judges and jurors,
sworn to do justice, and bound patiently to hear and weigh all the
evidence and arguments that can be offered on either side,—it should
simply _count_ the plaintiffs and defendants in each case, (where there
were more than one of either,) and then give the case to the majority;
after ample opportunity had been given to the plaintiffs and defendants
to reason with, flatter, cheat, threaten, and bribe each other, by way
of inducing them to change sides. Such a process would be just as
rational in courts of justice, as in halls of legislation; for it is of
no importance to a man, who has his rights taken from him, whether it be
done by a legislative enactment, or a judicial decision.
In legislation, the people are all arranged as plaintiffs and defendants
in their own causes; (those who are in favor of a particular law,
standing as plaintiffs, and those who are opposed to the same law,
standing as defendants); and to allow these causes to be decided by
majorities, is plainly as absurd as it would be to allow judicial
decisions to be determined by the relative number of plaintiffs and
defendants.
If this mode of decision were introduced into courts of justice, we
should see a parallel, and only a parallel, to that system of
legislation which we witness daily. We should see large bodies of men
conspiring to bring perfectly groundless suits, against other bodies of
men, for large sums of money, and to carry them by sheer force of
numbers; just as we now continually see large bodies of men conspiring
to carry, by mere force of numbers, some scheme of legislation that
will, directly or indirectly, take money out of other men’s pockets, and
put it into their own. And we should also see distinct bodies of men,
parties in separate suits, combining and agreeing all to appear and be
counted as plaintiffs or defendants in each other’s suits, for the
purpose of ekeing out the necessary majority; just as we now see
distinct bodies of men, interested in separate schemes of ambition or
plunder, conspiring to carry through a batch of legislative enactments,
that shall accomplish their several purposes.
This system of combination and conspiracy would go on, until at length
whole states and a whole nation would become divided into two great
litigating parties, each party composed of several smaller bodies,
having their separate suits, but all confederating for the purpose of
making up the necessary majority in each case. The individuals composing
each of these two great parties, would at length become so accustomed to
acting together, and so well acquainted with each others’ schemes, and
so mutually dependent upon each others’ fidelity for success, that they
would become organized as permanent associations; bound together by that
kind of honor that prevails among thieves; and pledged by all their
interests, sympathies, and animosities, to mutual fidelity, and to
unceasing hostility to their opponents; and exerting all their arts and
all their resources of threats, injuries, promises, and bribes, to drive
or seduce from the other party enough to enable their own to retain or
acquire such a majority as would be necessary to gain their own suits,
and defeat the suits of their opponents. All the wealth and talent of
the country would become enlisted in the service of these rival
associations; and both would at length become so compact, so well
organized, so powerful, and yet always so much in need of recruits,
that a private person would be nearly or quite unable to obtain justice
in the most paltry suit with his neighbor, except on the condition of
joining one of these great litigating associations, who would agree to
carry through his cause, on condition of his assisting them to carry
through all the others, good and bad, which they had already undertaken.
If he refused this, they would threaten to make a similar offer to his
antagonist, and suffer their whole numbers to be counted against him.
Now this picture is no caricature, but a true and honest likeness. And
such a system of administering justice, would be no more false, absurd,
or atrocious, than that system of working by majorities, which seeks to
accomplish, by legislation, the same ends which, in the case supposed,
would be accomplished by judicial decisions.
Again, the doctrine that the minority ought to submit to the will of the
majority, proceeds, not upon the principle that government is formed by
voluntary association, and for an _agreed purpose_, on the part of all
who contribute to its support, but upon the presumption that all
government must be practically a state of war and plunder between
opposing parties; and that, in order to save blood, and prevent mutual
extermination, the parties come to an agreement that they will count
their respective numbers periodically, and the one party shall then be
permitted quietly to rule and plunder, (restrained only by their own
discretion,) and the other submit quietly to be ruled and plundered,
until the time of the next enumeration.
Such an agreement may possibly be wiser than unceasing and deadly
conflict; it nevertheless partakes too much of the ludicrous to deserve
to be seriously considered as an expedient for the maintenance of civil
society. It would certainly seem that mankind might agree upon a
cessation of hostilities, upon more rational and equitable terms than
that of unconditional submission on the part of the less numerous body.
Unconditional submission is usually the last act of one who confesses
himself subdued and enslaved. How any one ever came to imagine that
condition to be one of freedom, has never been explained. And as for the
system being adapted to the maintenance of justice among men, it is a
mystery that any human mind could ever have been visited with an
insanity wild enough to originate the idea.
If it be said that other corporations, than governments, surrender their
affairs into the hands of the majority, the answer is, that they allow
majorities to determine only trifling matters, that are in their nature
mere questions of discretion, and where there is no natural presumption
of justice or right on one side rather than the other. They _never_
surrender to the majority the power to dispose of, or, what is
practically the same thing, to _determine_, the _rights_ of any
individual member. The _rights_ of every member are determined by the
written compact, to which all the members have voluntarily agreed.
For example. A banking corporation allows a majority to determine such
questions of discretion as whether the note of A or of B shall be
discounted; whether notes shall be discounted on one, two, or six days
in the week; how many hours in a day their banking-house shall be kept
open; how many clerks shall be employed; what salaries they shall
receive, and such like matters, which are in their nature mere subjects
of discretion, and where there are no natural presumptions of justice or
right in favor of one course over the other. But no banking corporation
allows a majority, or any other number of its members less than the
whole, to divert the funds of the corporation to any other purpose than
the one to which _every member_ of the corporation has legally agreed
that they may be devoted; nor to take the stock of one member and give
it to another; nor to distribute the dividends among the stockholders
otherwise than to each one the proportion which he has agreed to accept,
and all the others have agreed that he shall receive. Nor does any
banking corporation allow a majority to impose taxes upon the members
for the payment of the corporate expenses, except in such proportions as
_every member_ has consented that they may be imposed. All these
questions, involving the _rights_ of the members as against each other,
are fixed by the articles of the association,—that is, by the agreement
to which _every member_ has personally assented.
What is also specially to be noticed, and what constitutes a vital
difference between the banking corporation and the political
corporation, or government, is, that in case of controversy among the
members of the banking corporation, as to the _rights_ of any member,
the question is determined, not by any number, either majority, or
minority, of the corporation itself, _but by persons out of the
corporation_; by twelve men acting as jurors, or by other tribunals of
justice, of which no member of the corporation is allowed to be a part.
But in the case of the political corporation, controversies among the
parties to it, as to the rights of individual members, must of necessity
be settled by members of the corporation itself, because there are no
persons out of the corporation to whom the question can be referred.
Since, then, all questions as to the _rights_ of the members of the
political corporation, must be determined by members of the corporation
itself, the trial by jury says that no man’s _rights_,—neither his
right to his life, his liberty, nor his property,—shall be determined
by any such standard as the mere will and pleasure of majorities; but
only by the unanimous verdict of a tribunal fairly representing the
whole people,—that is, a tribunal of twelve men, taken, at random from
the whole body, and ascertained to be as impartial as the nature of the
case will admit, _and sworn to the observance of justice_. Such is the
difference in the two kinds of corporations; and the custom of managing
by majorities the mere discretionary matters of business corporations,
(the majority having no power to determine the _rights_ of any member,)
furnishes no analogy to the practice, adopted by political corporations,
of disposing of all the _rights_ of their members by the arbitrary will
of majorities.
But further. The doctrine that the majority have a _right_ to rule,
proceeds upon the principle that minorities have no _rights_ in the
government; for certainly the minority cannot be said to have any
_rights_ in a government, so long as the majority alone determine what
their rights shall be. They hold everything, or nothing, as the case may
be, at the mere will of the majority.
It is indispensable to a “_free_ government,” (in the political sense of
that term,) that the minority, the weaker party, have a veto upon the
acts of the majority. Political liberty is liberty for the _weaker
party_ in a nation. It is only the weaker party that lose their
liberties, when a government becomes oppressive. The stronger party, in
all governments, are free by virtue of their superior strength. They
never oppress themselves.
Legislation is the work of this stronger party; and if, in addition to
the sole power of legislating, they have the sole power of determining
what legislation shall be enforced, they have all power in their hands,
and the weaker party are the subjects of an absolute government.
Unless the weaker party have a veto, either upon the making, or the
enforcement of laws, they have no power whatever in the government, and
can of course have no liberties except such as the stronger party, in
their arbitrary discretion, see fit to permit them to enjoy.
In England and the United States, the trial by jury is the only
institution that gives the weaker party any veto upon the power of the
stronger. Consequently it is the only institution, that gives them any
effective voice in the government, or any guaranty against oppression.
Suffrage, however free, is of no avail for this purpose; because the
suffrage of the minority is overborne by the suffrage of the majority,
and is thus rendered powerless for purposes of legislation. The
responsibility of officers can be made of no avail, because they are
responsible only to the majority. The minority, therefore, are wholly
without rights in the government, wholly at the mercy of the majority,
unless, through the trial by jury, they have a veto upon such
legislation as they think unjust.
Government is established for the protection of the weak against the
strong. This is the principal, if not the sole, motive for the
establishment of all legitimate government. Laws, that are sufficient
for the protection of the weaker party, are of course sufficient for the
protection of the stronger party; because the strong can certainly need
no more protection than the weak. It is, therefore, right that the
weaker party should be represented in the tribunal which is finally to
determine what legislation may be enforced; and that no legislation
shall be enforced against their consent. They being presumed to be
competent judges of what kind of legislation makes for their safety, and
what for their injury, it must be presumed that any legislation, which
_they_ object to enforcing, tends to their oppression, and not to their
security.
There is still another reason why the weaker party, or the minority,
should have a veto upon all legislation which they disapprove. _That
reason is, that that is the only means by which the government can be
kept within the limits of the contract, compact, or constitution, by
which the whole people agree to establish government._ If the majority
were allowed to interpret the compact for themselves, and enforce it
according to their own interpretation, they would, of course, make it
authorize them to do whatever they wish to do.
The theory of free government is that it is formed by the voluntary
contract of the people individually with each other. This is the theory,
(although it is not, as it ought to be, the fact,) in all the
governments in the United States, as also in the government of England.
The theory assumes that each man, who is a party to the government, and
contributes to its support, has individually and freely consented to it.
Otherwise the government would have no right to tax him for its
support,—for taxation without consent is robbery. This theory, then,
necessarily supposes that this government, which is formed by the free
consent of all, has no powers except such as _all_ the parties to it
have individually agreed that it shall have; and especially that it has
no power to pass any _laws_, except such as _all_ the parties have
agreed that it may pass.
This theory supposes that there may be certain laws that will be
beneficial to _all_,—so beneficial that _all_ consent to be taxed for
their maintenance. For the maintenance of these specific laws, in which
all are interested, all associate. And they associate for the
maintenance of those laws _only_, in which _all_ are interested. It
would be absurd to suppose that all would associate, and consent to be
taxed, for purposes which were beneficial only to a part; and especially
for purposes that were injurious to any. A government of the whole,
therefore, can have no powers except such as _all_ the parties consent
that it may have. It can do nothing except what _all_ have consented
that it may do. And if any portion of the people,—no matter how large
their number, if it be less than the whole,—desire a government for any
purposes other than those that are common to all, and desired by all,
they must form a separate association for those purposes. They have no
right,—by perverting this government of the whole, to the
accomplishment of purposes desired only by a part,—to compel any one to
contribute to purposes that are either useless or injurious to himself.
Such being the principles on which the government is formed, the
question arises, how shall this government, when formed, be kept within
the limits of the contract by which it was established? How shall this
government, instituted by the whole people, agreed to by the whole
people, supported by the contributions of the whole people, be confined
to the accomplishment of those purposes alone, which the whole people
desire? How shall it be preserved from degenerating into a mere
government for the benefit of a part only of those who established, and
who support it? How shall it be prevented from even injuring a part of
its own members, for the aggrandizement of the rest? Its laws must be,
(or at least now are,) passed, and most of its other acts performed, by
mere agents,—agents chosen by a part of the people, and not by the
whole. How can these agents be restrained from seeking their own
interests, and the interests of those who elected them, at the expense
of the rights of the remainder of the people, by the passage and
enforcement of laws that shall be partial, unequal, and unjust in their
operation? That is the great question. And the trial by jury answers it.
And how does the trial by jury answer it? It answers it, as has already
been shown throughout this volume, by saying that these mere agents and
attorneys, who are chosen by a part only of the people, and are liable
to be influenced by partial and unequal purposes, shall not have
unlimited authority in the enactment and enforcement of laws; that they
shall not exercise _all_ the functions of government. It says that they
shall never exercise that ultimate power of compelling obedience to the
laws by punishing for disobedience, or of executing the laws against the
person or property of any man, without first getting the consent of the
people, through a tribunal that may fairly be presumed to represent the
whole, or substantially the whole, people. It says that if the power to
make laws, and the power also to enforce them, were committed to these
agents, they would have all power,—would be absolute masters of the
people, and could deprive them of their rights at pleasure. It says,
therefore, that the people themselves will hold a veto upon the
enforcement of any and every law, which these agents may enact, and that
whenever the occasion arises for them to give or withhold their
consent,—inasmuch as the whole people cannot assemble, or devote the
time and attention necessary to the investigation of each case,—twelve
of their number shall be taken by lot, or otherwise at random, from the
whole body; that they shall not be chosen by majorities, (the same
majorities that elected the agents who enacted the laws to be put in
issue,) nor by any interested or suspected party; that they shall not be
appointed by, or be in any way dependent upon, those who enacted the
law; that their opinions, whether for or against the law that is in
issue, shall not be inquired of beforehand; and that if these twelve men
give their consent to the enforcement of the law, their consent shall
stand for the consent of the whole.
This is the mode, which the trial by jury provides, for keeping the
government within the limits designed by the whole people, who have
associated for its establishment. And it is the only mode, provided
either by the English or American constitutions, for the accomplishment
of that object.
But it will, perhaps, be said that if the minority can defeat the will
of the majority, then the minority _rule_ the majority. But this is not
true in any unjust sense. The minority enact no laws of their own. They
simply refuse their assent to such laws of the majority as they do not
approve. The minority assume no authority over the majority; they simply
defend themselves. They do not interfere with the right of the majority
to seek their own happiness in their own way, so long as they (the
majority) do not interfere with the minority. They claim simply not to
be oppressed, and not to be compelled to assist in doing anything which
they do not approve. They say to the majority, “We will unite with you,
if you desire it, for the accomplishment of all those purposes, in
which we have a common interest with you. You can certainly expect us to
do nothing more. If you do not choose to associate with us on those
terms, there must be two separate associations. You must associate for
the accomplishment of your purposes; we for the accomplishment of ours.”
In this case, the minority assume no authority over the majority; they
simply refuse to surrender their own liberties into the hands of the
majority. They propose a union; but decline submission. The majority are
still at liberty to refuse the connection, and to seek their own
happiness in their own way, except that they cannot be gratified in
their desire to become absolute masters of the minority.
But, it may be asked, how can the minority be trusted to enforce even
such legislation as is equal and just? The answer is, that they are as
reliable for that purpose as are the majority; they are as much presumed
to have associated, and are as likely to have associated, for that
object, as are the majority; and they have as much interest in such
legislation as have the majority. They have even more interest in it;
for, being the weaker party, they must rely on it for their
security,—having no other security on which they can rely. Hence their
consent to the establishment of government, and to the _taxation_
required for its support, is _presumed_, (although it ought not to be
presumed,) without any express consent being given. This presumption of
their consent to be taxed for the maintenance of laws, would be absurd,
if they could not themselves be trusted to act in good faith in
enforcing those laws. And hence they cannot be presumed to have
consented to be taxed for the maintenance of any laws, except such as
they are themselves ready to aid in enforcing. It is therefore unjust to
tax them, unless they are eligible to seats in a jury, with power to
judge of the justice of the laws. Taxing them for the support of the
laws, on the assumption that they are in favor of the laws, and at the
same time refusing them the right, as jurors, to judge of the justice of
the laws, on the assumption that they are opposed to the laws, are flat
contradictions.
But, it will be asked, what motive have the majority, when they have
all power in their own hands, to submit their will to the veto of the
minority?
One answer is, that they have the motive of justice. It would be
_unjust_ to compel the minority to contribute, by taxation, to the
support of any laws which they did not approve.
Another answer is, that if the stronger party wish to use their power
only for purposes of justice, they have no occasion to fear the veto of
the weaker party; for the latter have as strong motives for the
maintenance of _just_ government, as have the former.
Another answer is, that if the stronger party use their power
_unjustly_, they will hold it by an uncertain tenure, especially in a
community where knowledge is diffused; for knowledge will enable the
weaker party to make itself in time the stronger party. It also enables
the weaker party, even while it remains the weaker party, perpetually to
annoy, alarm, and injure their oppressors. Unjust power,—or rather
power that is _grossly_ unjust, and that is known to be so by the
minority,—can be sustained only at the expense of standing armies, and
all the other machinery of force; for the oppressed party are always
ready to risk their lives for purposes of vengeance, and the acquisition
of their rights, whenever there is any tolerable chance of success.
Peace, safety, and quiet for all, can be enjoyed only under laws that
obtain the consent of all. Hence tyrants frequently yield to the demands
of justice from those weaker than themselves, as a means of buying peace
and safety.
Still another answer is, that those who are in the majority on one law,
will be in the minority on another. All, therefore, need the benefit of
the veto, at some time or other, to protect themselves from injustice.
That the limits, within which legislation would, by this process, be
confined, would be exceedingly narrow, in comparison with those it at
present occupies, there can be no doubt. All monopolies, all special
privileges, all sumptuary laws, all restraints upon any traffic,
bargain, or contract, that was naturally lawful,[^117] all restraints
upon men’s natural rights, the whole catalogue of _mala prohibita_, and
all taxation to which the taxed parties had not individually, severally,
and freely consented, would be at an end; because all such legislation
implies a violation of the rights of a greater or less minority. This
minority would disregard, trample upon, or resist, the execution of such
legislation, and then throw themselves upon a jury of the whole people
for justification and protection. In this way all legislation would be
nullified, except the legislation of that general nature which
impartially protected the rights, and subserved the interests, of all.
The only legislation that could be sustained, would probably be such as
tended directly to the maintenance of justice and liberty; such, for
example, as should contribute to the enforcement of contracts, the
protection of property, and the prevention and punishment of acts
intrinsically criminal. In short, government in practice would be
brought to the necessity of a strict adherence to natural law, and
natural justice, instead of being, as it now is, a great battle, in
which avarice and ambition are constantly fighting for and obtaining
advantages over the natural rights of mankind.
[^117]: Such as restraints upon banking, upon the rates of
interest, upon traffic with foreigners, &c., &c.

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# 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.

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\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.